All that is required is that the citizen act in good faith.

Yet again the good-faith variant of the infamous Nuremberg Defense. How many of those who were “just following orders” were doing so in bad faith?

All of the letters also stated that the activities had been determined to be lawful by the Attorney General

This is from an earlier post, and describes the contents of the letters to the telcom companies. From the same post, here is the text of the statute:

B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

When I started in the practice of law, I did a lot of complex contracts. My senior partner taught me that if I used different words, I meant different things. We don’t know if the language “determined to be lawful” is a quote from the letters, but if it is, it may very well mean that the AG was not saying that all statutory requirements had been met, only that the surveillance was lawful under Article II powers. That might explain the Feinstein amendment. It would apply to all letters, not just to the one that White House Counsel signed.

but significantly, [FISC is] a court against which BushCo cannot invoke State Secrets

I wouldn’t be so sure about that. But aside from that, this aspect of the proposed process, “permit any plaintiff and any defendant in the applicable covered civil action to appear before the Foreign Intelligence Surveillance Court,” is, IMO, the show stopper. If the right to amnesty determination could be made in secret and KEPT THERE, I think the administration would go along with it.

Looking at the issue from the plaintiff’s point of view, I think DiFi’s “good faith” prong for applying amnesty is a loophole big enough to drive a truck through.

What DiFi (and Specter) are trying to do is punt the issue out of Congress. This is a repeating patten for Specter, for sure, and he’s pretty open about it.

Tough to tell what all the administration motives are for insisting on statutory amnesty. Legacy protection plays a role, because the cases may last past January 2009, and the next administration may be less aggressive with asserting state secret. And too, trying to pawn off the role of heavy to Congress, instead of having the assertion of state secret as the final closing act of the cases.

But the “protect methods of surveillance” excuse doesn’t carry any water with me. What’s being criticized is a POLICY, not a method. Everyone knows internet and telephone transmissions can be intercepted; and many people know that nearly all communications transactions (including visiting a web page) leave a record log behind. The administration (and I think Congress too) wants to preserve an illusion of privacy as against the government.

The consequences of being found out? Look to history. What was the fallout from the revelations of the Church Committee? Only an impression on the legacy of the snoopers, and a FISA law that, for privacy protection, is worth spit.

Let’s presume that Article II gives the president the power to wiretap Americans. If so, then before the Bill of Rights was added, the President had the power to wiretap.

I’m sympathetic to the inherent powers argument (I don’t think that statutes can precisely track Article II powers), but on a case-by-case basis, not as a wholesale right to snoop merely by uttering “foreign intelligence” before snooping.

At any rate, Article II is “we the people” giving a power to the president. The bill of rights didn’t give him any more or less power. The BOR was added because some forward looking folks knew that the government would pervert the overarching power transfer inherent in the constitution, so that the only rights the people have would be those positively expressed.

And a bit tangentially, if you are looking at the constitution, check the 3rd amendment, the one about quartering troops. If we are in a “time of war,” Congress can pass a law for quartering troops in our homes. Now THAT would make for some interesting debate, as we muck along trying to prevent all bad acts.

DiFi’s is meant to backdate approval. The immunity provision in SSCI relies on certification from the AG that the telecoms undertook the illegal wiretapping in good faith. SO Mukasey would be the one to make that certification, in spite of the fact that he wasn’t there and really has no way of certifying that the telecoms did act in good faith.

A. In DiFi’s first paragraph above:

“The language would only cover cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.”

B. A comment of LS @37 (thread on Dick Versus Scottish Haggis:

Look at what Ashcroft just wrote in November, 2007:

….”If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.:

And LS concludes: “Nowhere in his article does he say “he” made a determination of legality. Nowhere. His reference at the end to the AG…seems to be referring to Mukasey.”

So, just drawing attention to the verbs in present tense and the apparent strategy across situations, to in effect “backdate” legality by having current AG state a judgment.

Tiny point, I know, but boy you have to watch every single word, cuz these folks are trying to hide behind even verb tenses.

http://www.nytimes.com/2007/12…..9line.html

OTOH, there was surely a divine hand at work in the way he came to the position he plays now.

Anyway, will be lifting a virtual drink to you wherever you are in the BlueBayState on Sunday at 4:00.
Yikes it’s almost the other 4:00.
Until Trash Talk time, then.