House passes surveillance bill telecomm immunity

[Swamp Gas]

SO the traitor Dems voted this in. Kucinich, as always the Constitutionalist voted no, and Ron Paul, did not vote.

Here’s the roll call:

clerk.house.gov/evs/2008/roll437.xml


House passes surveillance bill with telecomm immunity

thinkprogress.org/2008/06/20/house-passes-surveillance-bill-with-telecomm-immunity/



House Approves Unconstitutional Surveillance Legislation (6/20/2008)


Contact: [phone] or [e-mail]

Washington, DC – Following a vote in the House of Representatives sanctioning warrantless wiretapping and handing immunity to telecommunications companies for their role in domestic spying, the American Civil Liberties Union expressed outrage at representatives who voted for the unconstitutional legislation. The bill, H.R. 6304, or The FISA Amendments Act of 2008, passed the chamber by a vote of 293-129, and is expected to be voted on in the Senate next week.

The following may be attributed to Caroline Fredrickson, director of the ACLU’s Washington Legislative Office:

"It’s Christmas morning at the White House thanks to this vote. The House just wrapped up some expensive gifts for the administration and their buddies at the phone companies. Watching the House fall to scare tactics and political maneuvering is especially infuriating given the way it stood up to pressure from the president on this same issue just months ago. In March we thought the House leadership had finally grown a backbone by rejecting the Senate’s FISA bill. Now we know they will not stand up for the Constitution.

"No matter how often the opposition calls this bill a ‘compromise,’ it is not a meaningful compromise, except of our constitutional rights. The bill allows for mass, untargeted and unwarranted surveillance of all communications coming in to and out of the United States. The courts’ role is superficial at best, as the government can continue spying on our communications even after the FISA court has objected. Democratic leaders turned what should have been an easy FISA fix into the wholesale giveaway of our Fourth Amendment rights.

"More than two years after the president’s domestic spying was revealed in the pages of the New York Times, Congress’ fury and shock has dissipated to an obedient whimper. After scrambling for years to cover their tracks, the phone companies and the administration are almost there. This immunity provision will effectively destroy Americans’ chance to have their deserved day in court and will kill any possibility of learning the extent of the administration’s lawless actions. The House should be ashamed of itself. The fate of the Fourth Amendment is now in the Senate’s hands. We can only hope senators will show more courage than their colleagues in the House."

For more information, go to:
www.aclu.org/fisa

To read the ACLU’s letter on H.R. 6304, go to:
www.aclu.org/safefree/general/35735leg20080619.html

[Swamp Gas]

www.dailykos.com/story/2008/6/20/155839/542/779/539258


Obama's Statement on FISA

by mcjoan

Fri Jun 20, 2008 at 01:08:23 PM PDT



"Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

"That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

"After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act.

"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people."

In an interview today on Bloomberg's "Political Capital with Al Hunt" (no link yet), Sen. Reid said he would attempt to remove the amnesty provision in the bill.

Reid said the Senate may try to remove a provision from the bill that shields telephone companies from privacy lawsuits. Holding a separate vote on that issue next week may provide political cover for Democratic presidential nominee Barack Obama. Even though the attempt may fail, Reid said the vote would allow those opposed to the liability protection to "express their views."

"I'm going to try real hard to have a separate vote on immunity," Reid said in an interview to be aired this weekend on Bloomberg Television's "Political Capital with Al Hunt."

"Probably we can't take that out of the bill, but I'm going to try."

That effort should be helped by Obama's opposition to the provision. His support of the remainder of the bill is disappointing, but that would be in large part offset if he can help kill immunity.

[Swamp Gas]

We'll see, Obama!!!

His vote on this will determine his compromising with The Enemy, thus being the Ememy, or will he be a true patriot. Our Congressman, Donald Payne, voted NO, and the Congressman from our mother-in-law's district Steve Rothman, also voted No. Anyone who votes Yes is a Traitor. Anyone who votes No is a Patriot.

[KNOWTHIS]

They bent again. A lot of people are very pissed off on liberal radio.

[Swamp Gas]

You're not kidding. However, that asswipe Ron Kuby on AirAmerica is talking about dumb movies instead of this horrible, Un-American action by the Democrats.

Again, watch Obama VERY closely.

I will write in for Kucinich if he does vote Yes.

[Swamp Gas]

These Yes people all have stocks in Verizon or AT&T, and practically all of the Red Companies like Intel, GE, Northrip, Lockheed, ExxonMobil, Wyeth, and Good Year. If We The People actually follow the Constitution, and rightfully sue a company, administration, or individual for 4th Amendment violations, then there is the fear that their stocks will go down. This is the Ultimate Fear of the Corporatist/Globalist.


www.bluefund.com/why-blue/blue-companies

Another question I have....Is Dumbya sniffing around Pelosi's................Table?

[Swamp Gas]

writ.news.findlaw.com/sebok/20080129.html


Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications?

By ANTHONY J. SEBOK

Tuesday, Jan. 29, 2008

The Senate is currently debating whether to immunize from civil liability the telephone companies that allegedly violated customers' privacy rights when they provided to the U.S. Government confidential information about customers' phone and Internet communications. However, in this column, I want to focus on a narrower issue: If enacted, would the immunizing legislation be constitutional?

In Other Contexts, the Federal Government Has Deemed Retroactive Immunity Unacceptable Unless Paired with a Compensation Fund
Click here to find out more!

Very recently, the Senate has acted as if retroactive immunity for tortfeasors was unacceptable. This was the position it took, for example, when it created the 9/11 Victims Compensation Fund. The Fund was offered in exchange for the victims' (in reality, their families') giving up their right to sue the airlines, the owners of the World Trade Center, and others. To give another example, Congress' recent attempts to eliminate hundreds of thousands of asbestos cases, through bills that almost became law in 2006, were also built on the assumption that, in exchange for eliminating asbestos plaintiffs' right to sue, they would receive compensation through a fund.

In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims' families, or access to a special court, such as in the case of childhood vaccines. The Black Lung Program and the attempted at instituting an asbestos program are both typical of how the federal government inserts itself into very pedestrian tort litigation by providing immunity from suit with one hand, and compensation to victims with the other.

Yet to read the newspaper reports of the debate in the Senate over the reauthorization of the Foreign Intelligence Surveillance Act (FISA), it is as if this familiar, long history of immunity-for-compensation has been forgotten. The Republicans want to add to FISA a provision that would simply wipe away the lawsuits that have already been filed without any compensation at all. The Democrats are crying foul, arguing that this would set a terrible precedent for the future. But it might be worse than that--the Republicans' proposal might actually be unconstitutional.

Can Congress Constitutionally Erase Substantial Liability Without Providing Compensation Because What Was Taken Was Intangible?

It is important to remember that, beneath all the heated rhetoric surrounding the reauthorization of FISA, lies a very simple issue of tort law. The lawsuits that have been filed against ATT and other telecoms allege, basically, that the telecoms are liable under a statutory tort. A section of the original FISA provides for civil damages of up to $1000, and punitive damages for its violation. There have been both individual suits and class actions filed against AT&T and other telecoms in courts around the country under this cause of action, as well as other, related causes of action, including California's consumer fraud law.

No one, it seems, really wants to argue that the telecoms did not commit actionable torts under the old law, although AT&T has vigorously denied that it is liable to anyone. Still, the Republicans' argument is that even if the telecoms did act in ways that make them liable, they still ought not to be required to compensate their victims, because they were helping America protect itself after 9/11.

This argument doesn't make a lot sense unless something else is added. After, the law interpreting the Fifth Amendment's Takings Clause makes it clear that if the state takes private property for the public interest, it must pay compensation. The same is true if a well-intentioned private citizen takes private property in an effort to protect his neighbors. If Bob tears down Sue's barn in order to protect the town from a spreading fire, why should Sue suffer a loss for an action that benefited everyone?

So what can be added to make sense of the Republican argument? One suspects that they do not think that the interests protected by the lawsuits filed in federal and state court are "property" in the same way that Sue's barn is surely property. Thus, they believe the state can eliminate these claims without paying compensation, because the Fifth Amendment only protects "real" property, not intangible property, such as a claim in tort law.

This would be a good theory, except for the fact that the state and federal courts disagree with it. In 1882, in Pritchard v. Norton, the Supreme Court stated, "Hence it is that a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference." This doctrine clearly applied to tort claims, as well as contract and property claims. For example, in 1993, in Jenkins v. Hospital of the Medical College of Pennsylvania, the Pennsylvania Supreme Court held that the U.S. Constitution's Due Process Clause prohibits the retroactive elimination of a wrongful birth claim by statutory tort reform, where the cause of action had already "vested."

More generally, the idea that a cause of action, once it vests, cannot be retroactively eliminated lies deep in the roots of our common law and constitutional tradition. That idea was one reason why the Senate did not just immunize the airlines and other defendants after 9/11. The reason for creating the Fund was not just that they wanted to help the families of the heroes who died on that day, though surely they did. It was also that they would have kicked up a firestorm of litigation had they tried to cut off the right to sue without offering any compensation in exchange.

The Appellate Case that Suggests a Basis for Congress' Eliminating Rights without Providing Compensation

So why has no one pointed out that perhaps the victims of the illegal NSA spying have a right to their vested claims, just as much as the victims of 9/11 or of black lung disease or asbestos, or their families, do?

One reason may be that the Senate does not think that the claims under FISA have really "vested" or "accrued" as the law requires. Yet it is hard for me to see how these terms do not apply to the plaintiffs in the suits that have already been filed, assuming that they can prove their cases. They had a private right to privacy that was established by a federal statute that was in force between 2001 and 2006. Allegedly, during that time, that private right was violated. It would seem to me that at the moment the violation occurred, their right to compensation vested and was accrued.

Another reason the Senate may not think that the claims under FISA can be eliminated without compensation is that they do not think that statutory tort claims are "real" in the way that common law tort claims, or contract or property rights, are "real." There is some support for this point of view in the case law.

Take, for example, Congress' elimination of thousands of lawsuits that had been filed under the Fair Labor Standards Act (FLSA), by the passage of the "Portal to Portal" Act of 1947. After courts had interpreted the FLSA to require that employers pay employees for the time it took for them to travel from the entrance of their factories to their work stations, masses of lawsuits were filed throughout the country to recover those unpaid wages. Manufacturers warned that the liability resulting from these suits could destroy the economy, so Congress eliminated the suits. Its decision to do so was upheld by the Sixth Circuit in 1948 in Fisch v. General Motors Corp.

However, Fisch is very hard to square with the idea that a vested right, once accrued, may not be retroactively eliminated without some sort of compensation. A close reading of Fisch shows that the court was very sensitive to the doctrinal problem it faced. Its reasoning was based on two arguments. It first held that the lawsuits for wages had not "vested," in the proper sense of the term, since they were based on contract terms created by Congress through the FLSA, and so they were always subject to revision by Congress. Second, it held that Congress had established, through its findings, that the Portal to Portal Act was necessary to preserve interstate commerce.

I cannot say whether I agree with Fisch or not. What I can say, however, is that it offers very weak support for the idea that causes of action based on a statutory tort stand on a completely different footing than causes of action based on common law torts. The causes of action that were triggered by the violation of FISA concerned privacy, a tort interest recognized by almost every state's common law, and possibly protected by an implied right of action under the First and Fourteenth Amendments as well. Congress was not creating a right out of whole cloth; it was providing a forum to recover damages for the violation of a right which that had already been established as a matter of common law and constitutional law.

If the best justification of Fisch is that no worker should have viewed his or her claim to extra pay under the Fair Labor Standards Act as "property" because it survived only at the mercy of Congress, then Fisch tells us nothing about how to view the FISA claims.

Nothing in this column indicates whether I think that the suits against the telecoms are valid, or whether the federal government should step in to halt them, as it did with the suits against the airlines after 9/11. Those are questions of policy for others to answer. What I think is unacceptable, however, is that the Senate should approach the rights of the litigants with such disrespect. The FISA claims are just like other statutory tort claims under our federal civil rights laws. It would seem to me incredible to say that the causes of action under the Fair Housing Act or the American with Disabilities Act are not as deeply rooted as, say, a medical malpractice claim.

Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.

[KNOWTHIS]

We'll see what he can actually do. We'll see if he says what he really means.

rawstory.com/news08/2008/06/21/obama-ill-fight-to-strip-telecom-immunity-from-fisa/

Obama: I’ll Fight To Strip Telecom Immunity From FISA

Sen. Barack Obama, D-Ill., issued a statement in support of the House’s update of the Foreign Intelligence Surveillance Act, but said he would try to strip a provision granting immunity to telecommunication companies when the bill comes to a vote in the Senate next week....