What I wish congress understood

Thursday 14 February 2008This is over 15 years old. Be careful.

I’ve been unusually perturbed by the recent activity in Congress. These principles to me seem self-evident:

  • If a private organization establishes a set of rules, and its members violate those rules, that is not the business of a Congressional hearing, even if the organization is Major League Baseball.
  • If a government official asks an individual to break the law, and the individual breaks the law, then that individual may be prosecuted for breaking the law. This is true even if the official is the President and the individual is a telecomm company.

This last point is especially galling, since the President had at his disposal a law (the Foreign Intelligence Surveillance Act) which authorized him to wiretap, and provided immunity for the companies that assisted him, with a very light set of requirements. But he chose to ignore that law, and the telecomm companies looked the other way.

Supporters of telecomm immunity argue that we need the help of private companies in the war on terror, and that liability to suits would make them reluctant in the future. If that reluctance causes them to examine whether their actions would be contrary to law, then I think it is a good thing. Retroactive immunity for companies that blindly obeyed an administration thumbing its nose at federal law is a travesty.


MLB operates under an anomalous anti-trust exemption. It is Congress' option to pass a law to repeal that exemption. MLB prefers to keep it and thus needs to indulge Congress in a bit more oversight than they might otherwise have to.

FISA has existed for decades and has always had judicial oversight. The only change is to make it apply to overseas organizations other than governments.

The reason roving wiretaps are needed is terror suspects can walk into WalMart and pick up a cellular phone for 50 bucks. That SHOULDN'T require a new court order for each new phone number, it is different reality than when FISA was first enacted.

As far as immunity goes, thanks to John Edwards and his ilk we have a sue-happy culture where anyone can sue anyone else and given the right jury they can dole out millions. The telecom companies should be wary, since many people's IRA and pensions are dependent on the financial well being of those companies.

FISA still only applies to calls from overseas so the paranoia is quite silly. They aren't going to waste time trying eavesdrop on you unless you are getting calls from Al Qaeda.
DavidM, if the law needs to be changed then change the law; don't ignore it.

I don't understand your point about the roving wiretap law. The law had been updated and it was possible to get a roving wiretap for criminal investigations. That is, there had to be probably cause that someone was committing, or conspiring to commit, a crime. The change was to allow roving wiretaps for intelligence purposes, and it excluded safeguards like ensuring that the target of the investigation actually used the phone. On top of that, the wiretap order can be made to "John Doe", so the government may to get a wiretap on effectively any phone, without saying who it's wanting to get information from.

The point of a law is not only to give powers to investigators but to minimize misuse. We are a nation of people, not angels, and mistakes and misuse will happen. Intelligence agents want to do everything possible to prevent a new attack, and worry that if they don't do something it will be their fault of something does happen. There has to be some border to say "this is enough; go no further".

Lawsuits with very large payouts, like the McDonald's hot coffee suit, occur for a reason. In that one there was evidence in trial that McDonald's deliberately made the coffee too hot - 40 degrees hotter than other places - , so it could use cheaper beans, that there had been over 700 lawsuits over the same problem, including out of court settlements as high as $500,000 and people with similar third-degree burns. As I recall there were even internal memos from McDonald's from when the woman tried to settle for $20,000 (pre-trial) where they decided against it because they figured she would be too embarrassed to show the pictures of her groin area with the burns on it in court.

The jury foreman came in to the trial thinking it was stupid to have a lawsuit over being burnt by coffee, but by the end the evidence was overwhelming that McDonalds had a history of negligent behavior. The final result was a verdict of $200,000 against McDonalds, reduced by 20% because the woman was given 20% responsibility to the action. Then because it's impossible to put a company in jail and the only punitive action is through penalties, they found for another $2.7 million, which was two days of coffee sales. This was reduced to three times compensatory damages ($480,000) by the trial court.

There are three ways to keep companies from doing bad things - government oversight, trial courts with the possibility of high punitive damages, and boycotts. The last is the least effective and takes the most time. If the government refuses to take oversight, then who should?

And as to FISA calls applying only to overseas calls - I'm an American living overseas. And I want investigators to have to prove before a judge that there's reason to have a wiretap. It's the principle of the thing - I like the Constitutional protections I have. And the law isn't as restrictive as you think it is.

Plus, the retroactive immunity we're talking about was for *illegal* actions and FISA wasn't involved,
Give up the MLB hearings, are you kidding? This is the best chance Senators have to get on ESPN! Oh sure, the same senators get to orate at length during judicial nomination hearings but no-one watches those.

This is their big chance to get in front of the general public ("defending" the honor of the national sport, no less). No politician could resist.
@Steve: interesting to see that there may be some reason for Congressional jurisdiction here. I still think the entire episode is way overblown, and I haven't seen anyone arguing that Congress should be holding the hearings...

@DavidM: The idea that we can trust our leaders to only use their powers in ways we'd approve of is extremely naive. Our country was founded on a system of not letting any one person hold all the cards. That's what checks and balances is all about. Would you feel the same way about giving the president blanket authority if it were Hillary Clinton asking for it, or Nixon? Imagine your worst possible president. Would you give them the power? If not, then don't give it to Bush, because it won't be limited to him.
@Ned: FISA has been around for ages and still only extends to people calling into the country from abroad. There are checks and balances, the ENTIRE process is under judicial review. This means that even if by chance they get you on the phone and hear something incriminating, it would almost certainly be thrown out if you weren't the target of the investigation.

What do you think is going to happen? It takes lots of manpower and resources to tap phones and surveil suspects. They aren't going to waste it listening to you and your Aunt Selma. If you want real abuse how about the FBI files used by the Clinton's versus their political opponents? How about a nationwide takeover of health care?

@Andrew: The McDonald's lawsuits were ridiculous because a) coffee is served hot and b) when YOU spill it on yourself its not a criminal action on the part of the people who sold it to you. The settlement money was about just that: money. McDonald's has deep pockets and the trial lawyers knew it.

Those same trial lawyers are big donors of the Democrat party who opposes telecom immunity...gee I wonder why.
The phone company wiretaps we're talking about - the ones that the President demands be made made unprosecutable - were as far as we can tell ILLEGAL and NOT under the FISA courts. The stated reasons for making them immune to prosecution is that in the spirit of patriotism the phone companies did what the government requested. However, as a citizen the goal is to uphold the Constitution and the laws, and the phone companies have lawyers for that reason. If the government requests an illegal action, they are supposed to say NO. That's the American way.

And as for the McDonald's case - you didn't read anything I wrote did you? The two points you just mentioned were presented at the trial, and are talked about in the many analysis of the case, and were held by the jury members coming into the case. But the evidence - and remember, McDonald's has it's own set of high-priced and competent lawyers to defend itself - shows that the McDonald's corporation's conduct was, in the words of the judge, reckless, callous and willful.

Remember also that this is a trial by jury. Do you honestly believe that the American jury system is so messed up that jurors fraudulently make the wrong judgments for a trial just so the plaintiff gets more money?

When a company does wrong, and continues to do wrong, what mechanism do you want in place to correct it?
I don't wish to take over Mr Batchelder's blog so I will be brief.

The FISA extensions are necessary because we live in a different time than when it was passed. The DOJ argued that when monitoring a suspect they can go after any form of communication that person is using: email, cellphone, etc. When dealing with Al Qaeda this seems rather reasonable. The companies complied BECAUSE THE DOJ told them they believed it fell within their interpretation of the law. This is nothing nefarious nor a blatant disregard for law, it is an interpretation which was deemed inaccurate in a later review by a Federal court. As I stated the process is still under judicial review, so anything they learn still has to pass judicial review to EVER be used in a case. Period.

I did read what you read, 2.7 million in punative damages. You do know what punitive damages are, don't you? Its to ensure that a company does not do what it did again. In that case the argument was that the coffee was too hot and that the warning on the cup was not big enough. If you think a woman scalding her thighs should cost a company 2.7 million dollars we will be in perpetual disagreement.

Best wishes to you.

PS. Lawyers don't matter with the right jury as we have this ridiculous anti-business mentality invading our culture. Businesses cannot make you do anything, only government can.
@DavidM: You seem to be arguing that the telecomm companies acted within a reasonable interpretation of the law, and that subsequent review will confirm that it was all lawful. If so, why is it important to grant them retroactive immunity? The current administration seems obsessed with removing oversight and checks and balances from the system. I think this is a destructive trend, and one that would horrify the founders.
Businesses cannot make you do anything, only government can.

what an absurd statement. Yes, businesses cannot make me purchase their crappy factory-processed food...unless, of course, i want to eat and cant afford 3 acres of farmland and 24 hours a day of labor to grow my own food. Businesses cannot make me purchase their overpriced and crappy health insurance...unless, of course, I want to be able to afford going to a doctor (likewise, doctors don't have to participate in those crappy insurance plans, unless of course they want patients). Businesses cannot force me to read their shitty billboards, signs, advertisements, and marketing crap all day long, with its proven coercive psychological effects (otherwise why would they do it) no matter where I go, unless I have to actually leave my house and open my eyes. Businesses cannot make me breathe the dirty air they've polluted or tolerate the extreme weather conditions their global warming has caused, unless of course I live on planet earth. And, should a company like Blackwater ever achieve their stated goal of starting to take over domestic security, not just Iraqi security, then we're really going to have a business telling us what to do.

So don't tell me businesses cannot make me do anything...we are all eating, breathing, and living in a bubble entirely created and maintained by multinational corporations. They control pretty much everything.
FISA and telecom: And this is why we should not have secret laws. Do we have to trust that the government is always right? Who is to blame when it's wrong? Oops! National secret = get out of jail free card for the government. Plus, Qwest did not comply. Were they wrong to say no? And the phone companies have lawyers. If someone comes to me and says "I'm from the DOJ. Under secret law you're required to break into your neighbor's home and retrieve evidence we believe was used for terrorism, and you're not allowed to tell anyone about it." Should I follow that instruction?

To quote Ned: "If a government official asks an individual to break the law, and the individual breaks the law, then that individual may be prosecuted for breaking the law. This is true even if the official is the President and the individual is a telecomm company."

What the phone companies did was ILLEGAL. The correct response from the administration would have been to change the laws, not ask that someone break them. Again, who should take the blame for breaking the law? If it wasn't illegal then why ask for immunity?

Go back to the Supreme Court case of US v. Reynolds which recognized the state secrets doctrine, inherited from British common law. In 1948 a B-29 Superfortress bomber crashed. The widows of the 3 RCA employees on the plane (RCA was an Air Force contractor) wanted the accident reports on the crash but the Air Force refused to release them, saying it would threaten national security. The information was declassified in 2000 and you know what? There was no threat to national security and it showed that the bomber was in poor condition.

Falsehoods, negligence, and fraud all thrive in secrecy. So does power. Who is to blame when something goes wrong? How is just restitution made? Ehh, but just read a bunch of quotes on sunshine at http://wikifoia.pbwiki.com/Sunshine+Quotes .

Yes, I remember my high school civics class. You see the part where I broke up the verdict into two parts, with the punitive damages listed as a way to punish the company for 10 years of continued negligence and 700 previous lawsuits? And if you read the analysis you'll see that before the trial McDonald's said they will not lower the temperature of the coffee and afterwards they did. The thread of harsh punitive damages seems to have worked here.

"ridiculous anti-business mentality " -- ha, ha, ha, ha, ha, ha. I'm hard pressed to think of another country which is more pro-business. Starting a company is almost trivially simple. My LLC cost $350 and that's because I paid a lawyer for it. A friend started one for under $100. For about $150 I can create a Delaware company over the internet. Starting a company is one thing, but doing business is another. Yet the World Bank Group says there are only two countries where it's easier to do business; Singapore is #1 and New Zealand is #2. What would needed to make the US this business utopia you aspire towards?
@DavidM: How is the time we live in so different from those days of yore when FISA was enacted? In October 2001, Congress passed, and Bush signed into law, revisions to FISA to address emails, cell phones, and the Internet. Are you saying that technology has progressed so much since 2001 that the laws no longer apply? That extension isn't going anywhere. The only thing that's in danger of expiring is the PAA, which allows the President to do the monitoring without any oversight altogether, and the only thing blocking THIS Congress from going along with him on THAT is the desire by the administration for retroactive immunity for the telecoms.

Since FISA already provides for retroactive warrants -- and to the best of my knowledge, the inability to get a FISA-appropriate warrant has never been cited as a stumbling block -- I see no reason to grant blanket retroactive immunity nor to provide monitoring without oversight.
Though in a historical sense you're right. Companies these days don't have the power they did long ago, when the Dutch East India Company (the VOC) had powers these days only available to governments, including the ability to wage war, negotiate treaties, coin money, and establish colonies.

Or when the Pinkerton Detective Agency had more agents than the US had in the standing army, "causing the state of Ohio to outlaw the agency due to fears it could be hired out as a private army or militia." (Quote from Wikipedia.) and leading to the Anti-Pinkerton Act.
"Businesses cannot make you do anything". Ever hear of a company town?

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don’t you call me ’cause I can’t go
I owe my soul to the company store
@DavidM: Here's a little story about the abuse of power by the judiciary you seem to think are as trustworthy as the FBI and the executive branch (of which, by the way, the Vice President apparently now refuses to be considered a part). Private corporations and politicians are hand in glove in their own interests agains those of the American people, and it is now apparently impossible to expect justice fro the courts. Any attempt to further limit civil rights should be regarded with the utmost suspicion.

This particular executive branch has ridden a coach and horses through the American constitution, and if you trust them then you should expect a knock on your door in the middle of the night some time in the next ten years. If the current state of affairs delineates the freedom that Bush pretends to seek to protect it makes you wonder why he's bothering in the first place.

Please don't make the mistake of thinking this is a party political discussion. The Democrats in Senate also need a whipping for passing their lily-livered surveillance law with telco immunity built in.

If you value your freedom so little you want to give it away then please close the door behind you as you leave the country.
Re DavidM, it always amazes me when those who make the argument that the heavy hand of government is an impediment to business also take issue with the jury system. Juries, if you think about it, are the one place where citizens exercise control over the government EVERY DAY. Sure, we all vote every now and then, but juries allow citizens to have direct input into who government will sanction. Both the grand juries and regular juries are intended to PREVENT government from a free exercise of its power, and as such are one of the main bastions of our freedoms. In the McDonalds case, both sides had high-powered lawyers, so it's hard to paint McDonalds as an innocent victim. If DavidM doesn't believe that a jury can make a sensible decision, why buy into any kind of representative government? The electorate is a jury writ large - the whole is presumably as intelligent as its parts. Is DavidM willing to give up his right to vote because he thinks others vote unwisely? His own right to serve on a jury because some are swayed by sharp lawyers? I'd bet not, but I'd be interested in what he would prefer in place of juries, and to hear how that would better protect our rights as citizens.

Paul Downs

Add a comment:

Ignore this:
Leave this empty:
Name is required. Either email or web are required. Email won't be displayed and I won't spam you. Your web site won't be indexed by search engines.
Don't put anything here:
Leave this empty:
Comment text is Markdown.