Ask for a bill to make it legal, then. Retroactive immunity runs against the rule of law. The telecoms are not naive - they are rich, incredibly government-savvy, and fully lawyered up. They've also been doing this for years. There is no reason to believe they didn't know they were breaking the law. There is also no reason to believe the administration didn't know it was breaking the law. If the law should mean anything, the telecoms and the administration need to at the very least come clean on the facts. If this sort of intrusiveness is needed, then the administration can ask for legal authorization going forward.
One more thing: Bush is not the Commander In Chief of private industry. I suggest a careful half hour with the Constitution again.
Jim Harper
· 1 year ago
This is better reasoned than the piece I criticized, Hance, but your general endorsement of Kerrey's view is not persuasive or wise. The law does - and did - permit authorities everything they need and needed to address the 9/11 attacks and terrorism generally.
I suppose I should point out that I reject the administration's claims to secrecy as much as I reject the push for telco immunity. You are right that secrecy is the reason immunity is being sought - probably to cover up yet more intrusive, and by the way, ineffective, surveillance.
This talk of abandoning the rule of law is just another example of terrorism having its effect. Terrorism is a strategy used by the weak to goad the strong into self-injurious over-reaction. When "leaders" like Kerrey and Posner wet their pants and give up on the constitution and the rule of law, that's terrorism having its intended effect. I'm not falling for it. Everyone should have terrorism in perspective, but these so-called leaders obviously don't.
Don Marti
· 1 year ago
Nice try by Posner, but the USA PATRIOT Act already amended that part of FISA. The federal government can already do "hot pursuit" wiretapping of newly discovered numbers without having to wake up a FISA judge first.
Reasonable people can disagree about when a judge has to be brought into the loop, but it's clear from the plain language of the 4th Amendment that a warrant, from a judge, needs to be in the picture somewhere. Any company that complied with requests that aren't backed up by a warrant at all needs to first, send its lawyers back to Constitutional Law class and second, face the consequences of its illegal actions.
Jason Sonenshein
· 1 year ago
The only way the telecom companies should be granted immunity is by a special prosecutor, in exchange for their testimony against the administration officials with whom they collaborated.
eric
· 1 year ago
"The Fourth Amendment concerns 'unreasonable' searches and seizures, and electronic surveillance is routinely conducted on all sides during wartime."
Wartime? Did Congress declare a war? Sorry, having been in a cave for six years, I missed that.
Timon
· 1 year ago
"I don’t know many who would argue that the Miranda Warning hasn’t worked pretty well."
I would argue that the exclusionary rule has done more to undermine public confidence in the justice system than any other ten legal changes in American history combined. The idea that a murder weapon should be hidden from a jury because a cop misbehaved is totally repulsive. Fortunately, it is a couple decisions away from being rendered meaningless (Hudson v Michigan etc). This idea that a legal principle younger than Nicole Kidman is timeless and inviolable is a little weird.
eee_eff
· 1 year ago
And now they cannot even defend themselves in court, because the details of the investigations remain classified
One of the key functions of lawsuits is to cause the dissemination of information, and this is information that is important, and of manifest public concern.
All Comments
One more thing: Bush is not the Commander In Chief of private industry. I suggest a careful half hour with the Constitution again.
I suppose I should point out that I reject the administration's claims to secrecy as much as I reject the push for telco immunity. You are right that secrecy is the reason immunity is being sought - probably to cover up yet more intrusive, and by the way, ineffective, surveillance.
This talk of abandoning the rule of law is just another example of terrorism having its effect. Terrorism is a strategy used by the weak to goad the strong into self-injurious over-reaction. When "leaders" like Kerrey and Posner wet their pants and give up on the constitution and the rule of law, that's terrorism having its intended effect. I'm not falling for it. Everyone should have terrorism in perspective, but these so-called leaders obviously don't.
Reasonable people can disagree about when a judge has to be brought into the loop, but it's clear from the plain language of the 4th Amendment that a warrant, from a judge, needs to be in the picture somewhere. Any company that complied with requests that aren't backed up by a warrant at all needs to first, send its lawyers back to Constitutional Law class and second, face the consequences of its illegal actions.
Wartime? Did Congress declare a war? Sorry, having been in a cave for six years, I missed that.
I would argue that the exclusionary rule has done more to undermine public confidence in the justice system than any other ten legal changes in American history combined. The idea that a murder weapon should be hidden from a jury because a cop misbehaved is totally repulsive. Fortunately, it is a couple decisions away from being rendered meaningless (Hudson v Michigan etc). This idea that a legal principle younger than Nicole Kidman is timeless and inviolable is a little weird.
One of the key functions of lawsuits is to cause the dissemination of information, and this is information that is important, and of manifest public concern.