Personal Opinion on FISA

[grantcart]

I apologize for bothering with another thread on FISA.

Over the last 48 hours I have encountered several outstanding citizens who have criticized something I have said on the FISA issue. These criticisms have included the fact that I am a "nazi","quisling","coward" and "have no individual opinion". Of course that is a distinction that many others have also received on the subject from self appointed experts who have a much higher opinion of their grasp of constitutional issues than the rest of us.

I have not been able to post my response to these fine citizens despite an effort to do so as the threads or subthreads were no longer accessible.

There have been many well argued responses to the subject that are written by more intelligent resources that have better legal background and so my individual response is unlikely to add much to the overall quality of the debate. I would be surprised if anyone feels that they have gained much insight by the following.

However, I would simply like to be able to respond to the query whether or not I had an individual opinion on the matter (which is a response I think to this thread in which an outstanding authority of the subject who was quoted without comment on the matter http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x6473419).



1) Given Senator Obama's intelligence, expertise and what he has revealed to us so far to date about his integrity and his vast knowledge of the constitution I think that we should be willing to give him the benefit of the doubt when it comes to an issue that is a) not as black and white as has been presented by some b) could have a dramatic impact on the general election.


2) I was not happy that warrants are not needed for domestic to foreign survelliance although there was a poster today who appeared to indicate that this was not as big a change as I had previously thought as all communication across our nations border has always operated under the consideration that it was not covered by the 4th ammendment.

3) I was not aware until today that evidence for a warrant has been narrowed so that it cannot be based simply on statements that the person might have made that are protected by the first ammendment.

‘(2) PROBABLE CAUSE- In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

4) Although the ACLU makes light of it a number of other significant folks like Halperin and Obama (and many of the right leaning critics of the compromise) that the executive branch's ability to simply initiate an action that has not been previously covered by legislation has been taken away and now must have approval by the FISA courts. It also requires congressional oversight. So in the future the ability simply to define something as "in the interests of national security" and put the power of the government behind it will no longer be solely within the power of the executive branch.

5) As somebody who has lived overseas for several decades I like the fact that the 4th ammendment now covers overseas Americans but don't see that as major factor..


But in all honesty numbers 2-5 are not my independent opinions but gained from others:


In addition to Number 1 above I can give you two more completely indpendent opinions on the subject


a) I never thought that suing the shareholders of companies and making them pay when it was government officials who were 95% responsible and individual telecom officers and their attorneys who were 5% responsible was particularly fair. Here is a more detailed explanation

Party A breaks (atleast in spirit) the law and is 95% responsible (The government)

Party B does not resist the government requests for information with a formal written declaration of a) legality b) national security and so does not get the automatic ammunity provided for (they still have a good chance of defending the suit based on standard government sub contractor immunity). (The telecoms are 5% responsible as the primary culprit is the government agency that asked for private sector cooperation)


Party C sues on behalf of the public ('non profit' civil rights organizations)

Party D the public

Party E share holders.

So without the immunity C sues B (when they should really be suing A). If they are successful there will be hundreds of millions of dollars with a large share of that staying with C (reimbursing their inhouse legal departments) and a token amount going to the injured party D.

This would be paid for not by A(government officers) or B (meaning the executives of the telecoms) but by E the shareholders which consist of individuals and pension trusts like unions and workers who really are just another subset of D.

So I never thought that suing the telecoms was the great panacea that many people here did as it will end (if successful) with one subset of the public paying through the litigation the general public so that everyone ends up wtih $ 4.23 or some token amount.

I would have preferred that the telecoms be fined and that the individual executives in the telecom companies being fined directly out of their pockets, whether they were the inhouse counsel or the hired attorneys or the CEO - whoever failed to press the government for the certificates that they should have, and that companies like Qwest did.

And yes I do think that all of the non profits who filed law suits have ulterior motives and continued to blow the actual suit way out of proportion as they had their eyes on their share of the hundreds of millions they would have won (had they actually won in court).

There is an argument to be made that the civil litigation would have helped the discovery process.

Senator Obama's remarks today and other experts seem to indicate that the appointment of the Inspector General will take care of what was lost by discovery. Others disagree.

In any case, taking out all of the other FISA questions out and, narrowly centering simply on the issue of suing the telecoms who failed to press the government for certification - I never thought it was a big issue and would have preferred that the 'tort' question would have been directed at a) the government officials who bore overwhelming responsibility for it b) the telecom officials who were directly involved in it - rather than punishing unknowing shareholders who had no participation in it at all.


b) I also have a very close relative who is a judge in a rural area and I have asked him from time to time about different aspects of his job. One of the things that I realize from his descriptions is that however good the system looks like on paper it doesn't really make a difference if 1) the prosecutors are not both honest and vigorously committed to the spirit of the constitution and not the letter and 2) the judge handling the warrants is not independently minded, committed to the constitution and not lazy.

So my independent opinion is that on February 19, 1942 before there was FISA and the current legislation FDR signed Executive Order 9066 that resulted in the internment of 110,000 Americans of Japanese descent who experience real concrete loss of liberty.

So in the end the constitution is not held up by the passage of this law or that law nearly as much as by the appointments that are made by the president for the prosecutors who are applying for the warrants and the judges who will decide on those warrants. This far more than the FISA law will determine what effect the constitution will have on real life people on real life issues.


To summarize:

I have picked up some from folks that support the compromise but here are my 3 completely independent opinions on the subject:

1) I trust Senator Obama on the subject and give him benefit on the doubt until such a time that overwhelming evidence to the contrary has been provided by independent and non partisan authority.

2) I never thought that making the telecom companies write out checks for tort offenses by individuals in the government or company executives was fair, that they should be held liable individually.

3) That much more that this specific legislation it is much more important to elect the guy that appoints the prosecutors and the judges and in this one issue I think Senator Obama is light years away from others who were running for the presidency, Republican or Democrat but is not within the same galaxy when compared with Senator McCain who has no grasp or inclination in this area.


I won't bother asking you for your independent opinion because everything you have provided on the subject to date has been off the top rehash from the ACLU and the other interested parties.

[Connie_Corleone]

1. Those are similar conclusions I came up with over the past few weeks.

I just never understood all the "fainting couch" hysteria that was going on around here. I can understand serious concerns about the bill, but all the "America died today" nonsense was really pathetic imho.

The bill isn't ideal. It was going to pass anyway. But at least it restores the FISA court. Let's do whatever we can to get Obama elected so he can fix Bush's mess.

[grantcart]

3. I have a suspicion that the 'non profits' that were suing saw this as their big pay day

and threw out all reason in order to get on the gravy train.

I wonder how much enthusiasm there would have been on their part had their been no possibility for civil suits against the companies with their 'bottom less pockets' and could have only sued the individuals involved for a couple of million?

We will never know.

Also never discussed was that fact that the telecom companies would have had two defenses 1) the more general 'sub contractor immunity' 2) the emotional appeal to the jury that they were told (probably) that they would be helping prevent the next 9/11.

[jgraz]

2. Respectfully suggest you develop a thicker skin.

Constant appeals to authority are an intellectual turnoff. I personally don't think Obama or Halperin is any more qualified to comment on this bill than you or I am -- especially since Obama has that huge ass-covering motivation.

Furthermore, you continually discount the ACLU as an "interested party" while slavishly quoting Obama as if he were some disinterested bystander. Why is an organization devoted to preserving our civil liberties less trustworthy than a politician in the middle of a campaign?

The bill is incredibly complex (intentionally so) and cogent responses take quite a bit of time to produce. At least show the rest of us the minimal amount of respect by submitting your own work, please.

[grantcart]

4. your condescending attitude noted

People who posted with comments on threads were frequently met with long lists of outstanding authorities that agreed with their position. I responded with a single authority that through personal and professional experience was in fact in a unique position to provide an opinion as he was

1) an academice authority

2) senior government authority

3) personally involved in the largest 1st ammendment case to go to the supreme court (Pentagon Papers)

4) a frequent expert witness on FISA and national security to the Justice Committee (probably the only one to have dual authority)

5) head of the ACLU office

having quoted Halperin you never took the opportunity to respond to the substance of his points, only to remark that citing authorities is an "intellectual turnoff" although at the same time you admit that it is "incredibly complex" so that intelligent experts like Halperin would seem to be useful.


Having then completely avoided the topics brought up by Halperin and made an insulting personal comment (which in your own turgid and partronizaing style you continue with this reply) I have come up with three points that no one else talks about and are not based on any authority.

Apparently you have a serious problem with reading comprehension so now I will repost for you again my completely personal opinions of the work that are developed without any outside authority - even though the substantive points of Halperin you never responded to:



In addition to Number 1 above I can give you two more completely indpendent opinions on the subject


a) I never thought that suing the shareholders of companies and making them pay when it was government officials who were 95% responsible and individual telecom officers and their attorneys who were 5% responsible was particularly fair. Here is a more detailed explanation

Party A breaks (atleast in spirit) the law and is 95% responsible (The government)

Party B does not resist the government requests for information with a formal written declaration of a) legality b) national security and so does not get the automatic ammunity provided for (they still have a good chance of defending the suit based on standard government sub contractor immunity). (The telecoms are 5% responsible as the primary culprit is the government agency that asked for private sector cooperation)


Party C sues on behalf of the public ('non profit' civil rights organizations)

Party D the public

Party E share holders.

So without the immunity C sues B (when they should really be suing A). If they are successful there will be hundreds of millions of dollars with a large share of that staying with C (reimbursing their inhouse legal departments) and a token amount going to the injured party D.

This would be paid for not by A(government officers) or B (meaning the executives of the telecoms) but by E the shareholders which consist of individuals and pension trusts like unions and workers who really are just another subset of D.

So I never thought that suing the telecoms was the great panacea that many people here did as it will end (if successful) with one subset of the public paying through the litigation the general public so that everyone ends up wtih $ 4.23 or some token amount.

I would have preferred that the telecoms be fined and that the individual executives in the telecom companies being fined directly out of their pockets, whether they were the inhouse counsel or the hired attorneys or the CEO - whoever failed to press the government for the certificates that they should have, and that companies like Qwest did.

And yes I do think that all of the non profits who filed law suits have ulterior motives and continued to blow the actual suit way out of proportion as they had their eyes on their share of the hundreds of millions they would have won (had they actually won in court).

There is an argument to be made that the civil litigation would have helped the discovery process.

Senator Obama's remarks today and other experts seem to indicate that the appointment of the Inspector General will take care of what was lost by discovery. Others disagree.

In any case, taking out all of the other FISA questions out and, narrowly centering simply on the issue of suing the telecoms who failed to press the government for certification - I never thought it was a big issue and would have preferred that the 'tort' question would have been directed at a) the government officials who bore overwhelming responsibility for it b) the telecom officials who were directly involved in it - rather than punishing unknowing shareholders who had no participation in it at all.


b) I also have a very close relative who is a judge in a rural area and I have asked him from time to time about different aspects of his job. One of the things that I realize from his descriptions is that however good the system looks like on paper it doesn't really make a difference if 1) the prosecutors are not both honest and vigorously committed to the spirit of the constitution and not the letter and 2) the judge handling the warrants is not independently minded, committed to the constitution and not lazy.

So my independent opinion is that on February 19, 1942 before there was FISA and the current legislation FDR signed Executive Order 9066 that resulted in the internment of 110,000 Americans of Japanese descent who experience real concrete loss of liberty.

So in the end the constitution is not held up by the passage of this law or that law nearly as much as by the appointments that are made by the president for the prosecutors who are applying for the warrants and the judges who will decide on those warrants. This far more than the FISA law will determine what effect the constitution will have on real life people on real life issues.


To summarize:

I have picked up some from folks that support the compromise but here are my 3 completely independent opinions on the subject:

1) I trust Senator Obama on the subject and give him benefit on the doubt until such a time that overwhelming evidence to the contrary has been provided by independent and non partisan authority.

2) I never thought that making the telecom companies write out checks for tort offenses by individuals in the government or company executives was fair, that they should be held liable individually.

3) That much more that this specific legislation it is much more important to elect the guy that appoints the prosecutors and the judges and in this one issue I think Senator Obama is light years away from others who were running for the presidency, Republican or Democrat but is not within the same galaxy when compared with Senator McCain who has no grasp or inclination in this area.


I won't bother asking you for your independent opinion because everything you have provided on the subject to date has been off the top rehash from the ACLU and the other interested parties.

As to the reasons of trusting Obama more than the ACLU is that it is not solely a legal or constitutional position but a political position. In the end you can win the ACLU war by having the "right" legislation but the wrong people involved, and that is the third point I brought up - more important than the particular legislation is the power to appoint the right people to the Justice Department, the National Security Agencies and so own, which was my 3rd point above.

My reasoning for believing that Obama would be better than any of the candidates running for the prsidency goes to the way that he looks at legal issues in a clear and objective stance. The reason that he was elected editor of the Harvard Law Review and was one of its most poular leaders is that he did not see the position as one to promote his personal interests but the larger interests fo the Review. To that point he guaranteed the conservatives that he would listen to their postitions and make sure they had a voice.

In the campaign he did not take what would have been easy cheap shots against Senator Clinton but tried to maintain the fight on issues that would elevate the debate.

He doesn't want to end the war, he wants to end the assumptions that led us to consider the war.

So from a completely epistimological point of view I like the way that he takes an impersonal and objective view of knowledge and seeks to leaverage that to a better policy rather than seek political power and use that as leaverage to a particular policy, which could be a description of Clinton's triangulation.

So my trust of Senator Obama goes beyond any particular checklist or policy. More than any politician I like his epistimological and existential approach to facts, knowledge and experience. Now is that original enough for you?

[cliffordu]

6. Nice work, Grantcart.

YOu have a passage here that fleshes out precisely the point I was hammering at the other night on some thread or another...My comment being a whole lot less elegant than your paragraph here:

"My reasoning for believing that Obama would be better than any of the candidates running for the prsidency goes to the way that he looks at legal issues in a clear and objective stance. The reason that he was elected editor of the Harvard Law Review and was one of its most poular leaders is that he did not see the position as one to promote his personal interests but the larger interests fo the Review. To that point he guaranteed the conservatives that he would listen to their postitions and make sure they had a voice."


I would futher say that in the scheme of things it is more important for Obama to get elected at this point than to watch him take a principled stance that might cost the White House. Sorry about this, but it's the world we inhabit. If it weren't the case, as someone else around here said, Kucinich would be the nominee.

The hysterics and Wildly Disappointed can gnash teeth and tear robes till doomsday, if they want to. I just want to end the very real threat of the United States starting a nuclear conflagration.

[jgraz]

7. 1) Quit whining about condescension. Do you actually READ what you write?

"Apparently you have a serious problem with reading comprehension so now I will repost for you again my completely personal opinions of the work that are developed without any outside authority - even though the substantive points of Halperin you never responded to"

Seriously, YOU'RE complaining about condescension and turgid style? grantcart, meet Mr. Mirror.

2) Please stop making this into a referendum on Obama. This discussion is about the FISA legislation. At least try to stay on topic.

3) Speaking of this topic, I'm pretty much done with it. I'm tired of wading through multi-page posts only to find they consist of little more than hero-worship and political spin. There are very few people on this board who have the ability to discuss something of this complexity. It requires logic and critical thinking skills that far exceed that of most DU posters.

This has been a pretty depressing week all around. I truly hope Obama manages to fool enough people for enough time to make it into the White House. At this point, I'm honestly not sure how happy I'll be about it if he does.

[cliffordu]

5. Almost had a cogent point there and then you completely fucked it up

with the personal attack.

Nice try though.

edit for speling(sic)

[jgraz]

8. In all honesty, I don't see a personal attack in that post.

I have a lot of respect for grantcart, I just think he's dead wrong on this issue. Pointing out that his reasoning is faulty in this case is not a personal attack.