Ok, I'm watching Olbermann's special comment on Obama and the FISA bill.
What I am going to do is dissect the criminal versus civil case meme that it seems most don't understand...
First off, let's define the differences between criminal and civil cases. This link here provides a pretty good rundown on it. Now, I understand that many lawyers are going to go comment and tell me that this is a very "simplistic" view, I know this. Many here aren't lawyers, and, need to have this given to them in simple terms.
A criminal case is brought because a crime, as defined by statute, was committed. There are two different levels, misdemeanor and felony. Any criminal case against the telecoms would be tried in federal court, and as such, there must be a federal law that was broken.
A civil case is brought when a wrong is done, not that a law was broken, and a court hears both sides of the issue.
Now, what you need to know here is that the level of evidence is less in a civil case than in a criminal case. In a criminal case, the case must be made beyond a reasonable doubt. This is not so for a civil case.
I'm sure many a lawyer will go into all kinds of legalese of acts, causation, etc, but, the only one you really need know in criminal law for this discussion is; mens rea. Mens rea is latin for "guilty mind", and, it basically lends itself to intent; was there an intent to break the law? The telecoms will argue, effectively, in a criminal case that they had no intent to break the law, that the government told them it was legal, and they were merely following that advice.
Now, remember having to present a case in a criminal court to the level where that case is beyond a reasonable doubt? Guess what that takes; evidence and witnesses. Also, it takes someone who has prosecuting authority to bring the charges, in the case of the telecoms, a U.S. Attorney or the Department of Justice itself.
So, let's recap what has to happen for a criminal trial of telecoms to even begin:
- A U.S. Attorney, with the blessing of the Department of Justice, must file charges, under a federal law, against, not the telecoms, but, specific people in the telecoms. Remember, ENRON wasn't charged with breaking a law; it was Ken Lay and Jeffrey Skilling that were charged with breaking a law.
- The prosecutor must have evidence that these individuals broke the law that reaches the level of beyond a reasonable doubt, and, remember, that the burden of proof is on the prosecutor; ie, the defendant is considered innocent until proven guilty.
- The evidence presented must be allowed into the courts record, whether it be the public record or in private to the judge. This means that states secrets cannot be invoked, and, if a jury trial, the juror's must be able to have access to hear the evidence. This is a crucial aspect to a criminal trial, especially in this case, since it will involve specifics on the abilities of the NSA.
- Even if the Dept. of Justice is willing to bring the case, even if the prosecutor can find evidence against person(s) at the telecoms, even if the evidence is allowed into court, even if you meet the level of beyond a reasonable doubt, a judge or jury may still acquit.
This is why you have companies being sued in a civil action instead of having criminal charges brought against them.
Was EXXON tried criminally for the Valdez spill, or, were they sued civilly? This is called tort.
tort n. French for wrong, a civil wrong, or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law), and results in more civil litigation than any other category. Some intentional torts may also be crimes such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft), and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another, either by print or broadcast (libel) or orally (slander), is a tort and used to be a crime as well. (found here)
Unlike criminal law, a company as a whole can be sued in a civil case. Can you sentence a corporation to a prison term? Hardly. So, who in the telecoms will you indict in the governments warrantless wiretapping?
In a civil case, the burden of proof can shift from the plaintiff (the person(s) who bring the case) to the defendant (in our case, the telecoms). This hinges on the plaintiff making a prima facie case to which the defendant must then rebut or refute.
The biggest difference here is the burden of proof; in a civil case, the case is decided by a preponderance of the evidence. This simply means that if the plaintiff has a stronger case based on the evidence than the defendant, the plaintiff wins.
The standard in tort cases is what a reasonable and prudent man would have done, the details of applying this standard to the facts of the case is decided by the jury, and unknown to the defendant until the end of the trial.
If the telecom companies are given immunity from civil litigation, the issue is over. There will never, ever, be criminal charges brought against anyone in the telecom industry for giving into the Bush administrations warrantless wiretapping program without warrants being presented to them.
I can think of the following problems right off the top of my head:
- The Department of Justice will not bring charges against any telecom because they will not be able to identify any specific person(s) who broke a chargeable federal offense.
- The Department of Justice, even if they could identify a specific person or persons, will not bring any charges because to do so would compromise classified government information such as the workings of the NSA, abilities, etc.
- The Department of Justice will not bring any charges, even if they have an identifiable person(s) because the level of evidence it could present would not lead a jury or judge to convict because the evidence does not meet the standard of beyond a reasonable doubt.
- Even if charges were brought, those charged would/could argue that they had no intention of breaking a law and they were informed by the administration that their actions were, in fact, lawful.
This is why anyone... let me repeat this... ANYONE... who continues to spout how criminal charges can still be brought against the telecoms, and thus, the FISA bill with immunity from civil litigation is a non-issue needs to be educated on the differences.
I understand that John Dean states that there is no provision to preclude criminal charges in the FISA bill, however, that being a viable solution over civil litigation are two different things.
Finally, if nothing else convinces you that if this FISA bill passes as is, then think about this; it was Nancy Pelosi, Harry Reid, and others in Congress who worked to get the civil litigation immunity into this bill and they obviously cared nothing about criminal protections. If there was anyone... and let me repeat this... ANYONE... who cared about criminal prosecution, don't you think that would have been put into it as well? The telecoms have been working for a year now (if not longer) to get immunity from civil litigation. In that time frame, not one of them has ever worried about criminal prosecution? Ever stop to think why?
I'll leave you with Glenn Greenwald's article. It is a must read on who got how much money from what telecom. Given how much money telecoms have tossed around for this FISA bill with immunity from civil litigation, I can believe this politico report:
Telecom companies have presented congressional Democrats with a set of proposals on how to provide immunity to the businesses that participated in a controversial government electronic surveillance program, a House Democratic aide said Wednesday. . . .
Sounds like Big Pharma writing their own immunity, doesn't it? Let me ask again, if they were so worried about criminal prosecution, why isn't that in the bill?