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Former Attorney John Ashcroft has an op-ed in today's New York Times defending the retroactive immunity that will be granted the telecommunications companies in the pending FISA bills.  His position is that because the Administration assured the telecommunications companies that it was acting lawfully, the companies really had no choice but to abide the Administration's demands.  His position reads the Fourth Amendment right out of the Constitution and ignore FISA.

This statement by Ashcroft sums it up (and displays the arrogance of power emblematic of the entire Bush Administration):

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.

No, absolutely not.  Essentially, Ashcroft is relying upon the "Nixon Doctrine": If the President declares something to be lawful, it is.  However, our Constitution is specifically designed to prevent such arrogation of executive power.  The Fourth Amendment requires the executive branch to seek and receive judicial imprimatur for their actions, and FISA was enacted to ensure such judicial approval in the context of intelligence gathering.

So when the Attorney General comes a knockin', the telecommunications companies, who no doubt have extremely capable legal representation (I am certian they've heard about the Fourth Amendment and FISA), should have asked "Where's your warrant?"  The Attorney General can give the telecommunications companies all the assurances he wants, but in the absence of a valid warrant, they acted at their own risk.

Originally posted to thebrucie on Mon Nov 05, 2007 at 08:15 AM PST.

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Comment Preferences

  •  Good find! (4+ / 0-)
    Recommended by:
    Upper West, polecat, antifa, goon 01

    Hadn't heard that.

    They don't deserve immunity.  Where were their lawyers?

    "People should not be afraid of their government; governments should be afraid of their people." --V

    by MikeTheLiberal on Mon Nov 05, 2007 at 08:19:47 AM PST

  •  Excellent Diary (8+ / 0-)

    That is an absolutely false statement, unless the Fourth Amendment, due process and 200 years of case law are read out of the Constitution and Supreme Court Cases.


    The Democratic Message: Security, Privacy, Justice

    by Upper West on Mon Nov 05, 2007 at 08:22:15 AM PST

  •  The deal, baby. The deal was too sweet . . . (9+ / 0-)

    In exchange for helping out with total surveillance and data mining, the telecom companies were promised freedom to merge and monopolize markets, freedom to edit and interrupt content on the web according to their profit models and strategic vision of a corporatized society, and freedom from regulations that hindered any of this.

    Big corporations are the only true citizens in America, and dollars are the only true votes.

    If you don't have a well paid lobbyist on retainer down on K Street, can you really claim to be a citizen of this nation?

    "The rule of the wise must be absolute . . . rulers ought not to be responsible to the unwise subjects." ~ Professor Leo Strauss

    by antifa on Mon Nov 05, 2007 at 08:24:18 AM PST

  •  Exactly. They had the choice of lawyering up... (6+ / 0-)

    and going to court. But they WANTED to help advance the Police State.

    If class war is being waged in America, my class is clearly winning... - Warren Buffett

    by dj angst on Mon Nov 05, 2007 at 08:27:38 AM PST

  •  I kinda see his point (2+ / 0-)
    Recommended by:
    goon 01, MikeTheLiberal

    I've never gotten a call from the US AG, and I imagine it's rare to get one. This is the nation's highest-ranking law-enforcement official. So... If he called me up and said that there was an investigation underway and I was directed to give him some records, and I asked if this was a valid request and he said "yes," it would be difficult to rebuff that on the assumption that he was acting illegally and committing a crime.

    This is why we have these laws and why warrants are good things - because sometimes these guys do go bad and the law's the only thing that can hold them in check. I can kinda see Ashcroft's point, to an extent, even though he's wrong.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Mon Nov 05, 2007 at 08:27:49 AM PST

    •  But, this is Worse (7+ / 0-)

      But, this is exactly why we have a Fourth Amendment--to prevent the executive authority, in the absence of judicial review, from bringing its immense power to bear.  Moreover, the telcoms aren't some shlubs sitting in their house when the AG calls.  These are the most powerful corporations in the country and have access to high-priced attorneys who KNOW the law.  To say now that they were cowed into submission is far-fetched are are "patriots" as Ashcroft puts it, make a mockery of the Fourth Amendment.

      •  Quite so (4+ / 0-)
        Recommended by:
        Upper West, JayBat, marina, word is bond

        Speaking as a schlub, I completely agree. Especially because all of this started prior to 9/11 - a fact they are hoping to sweep under the rug. They'd love to excuse it all by referring back to the weird post-attack frenzy that led to crimes like the Patriot Act, etc. The narrative they're trying to craft is a complete lie.

        Every day's another chance to stick it to The Man. - dls.

        by The Raven on Mon Nov 05, 2007 at 08:54:17 AM PST

        [ Parent ]

  •  Ashcroft always was an idiot. (3+ / 0-)
    Recommended by:
    Upper West, Captain Nimrod, ratador

    Remember, all odors are particulate in nature.

    by ckerst on Mon Nov 05, 2007 at 08:28:53 AM PST

  •  And this explains them going after QWEST? (3+ / 0-)
    Recommended by:
    Upper West, marina, cwaltz

    Their behavior strongly indicates that they knew what they were doing (the Bush Administration) and that they knew they were breaking the law.

    Strong-arm tactics are an instrument of a Feudal state, not a Democratic one.

    Happy little moron, Lucky little man. I wish I was a moron, My God! Perhaps I am! -Spike Milligan

    by polecat on Mon Nov 05, 2007 at 08:46:40 AM PST

  •  Ashcroft on briefings: (4+ / 0-)
    Recommended by:
    Upper West, marina, Simplify, cwaltz
    Members of both political parties in both houses of Congress have already been briefed extensively about the activities underlying the current lawsuits. Obviously, not all 535 members of Congress can have equal access to such sensitive information; the risk that the information will be compromised is simply too high. But the intelligence committees are recognized authorities on these issues and proper repositories of these secrets.

    So you can see why it's OK to tell various telecom employees, from top executives to technicians, to do something for you, but it's not OK to tell Congressmen.

  •  This raises an interesting question (0+ / 0-)

    Exactly how was the administration's request for information communicated to the telco's? Did the attorney general personally call up their CEO's? Did it go through a standard channel between lower-level DOJ and telco employees for requests such as wiretapping?

    The telco's must receive requests all the time for legal actions that range from wiretapping to garnishment of employee wages. No doubt they have procedures in place for reviewing such requests, and the requests must be supported by court orders. In this instance, the absence of a court order must have sent up a red flag, whether it was handled within or outside the normal channels. There is no way the demand for information without a warrant could have been cleared except knowingly at the highest levels of corporate management by executives who knew better.

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