Dodd threatens filibuster on warrantless-wiretap bill: The Swamp
The Swamp
Posted December 17, 2007 1:27 PM
The Swamp

by Frank James

He may not be making a huge dent in Iowa or New Hampshire as a Democratic presidential candidate but, by God, Sen. Chris Dodd has decided he's going to make a big splash somewhere.

That somewhere happens to be the Senate floor on which Dodd is threatening to mount an old-fashioned filibuster over one of the most controversial issues of the day, the Foreign Intelligence Surveillance Act.

Specifically, the senator wants to strip from legislation that would renew FISA that would retroactively provide telecommunications companies with immunity for allowing the Bush Administration access to their networks to conduct warrantless surveillance.

The senator plans to offer an amendment he is co-sponsoring with Wisconsin Sen. Russ Feingold to strip out the immunity. If the amendment doesn't pass at a vote which would likely take place later today, Dodd would start his filibuster.

It's hardly possible to write a posting like this without mentioning perhaps the most famous filibuster, which occured in Frank Capra's classic film "Mr. Smith Goes to Washington" where Jimmy Stewart plays an idealistic senator who stages a filibuster, to the point of physical collapse, against the Big Money guys in Washington.

That movie contains about the only filibuster many Americans ever see anymore since trying to talk legislation to death is a rarely used Senate procedural tactic. Most controversial bills killed in the deeply partisan and divided Senate nowadays lack the 60 votes needed to move them to a final vote.

Said Dodd's Deputy Campaign Manager Amos Hochstein:

"This is not something that happens very often. It is actually fairly rare. But the senator felt that this is what is needed in order to do whatever he could in the Senate rules to stop the bill from moving forward.

According to the Senate's rules, Dodd must stand, he can't sit for even a second or he loses the floor. He won't be able to leave the floor of the Senate, not even for a potty break. He will lose the Senate floor if he yields to another senator for anything but a question.

A reporter asked Hochstein during the press conference about the loss of campaigning time in Iowa and New Hampshire a weak before Christmas.

"As far as the campaign is concerned, clearly, we want to spend as much time as possible on the ground in Iowa. That's where the efforts of the campaign are. But this is something that is absolutely important to the senator. He feels strongly about this. The senator has talked about this issue for a long time. Has stood up to President Bush on this and believes that all Democrats should. And is greatly disappointed that we are in the situation that we're in with this legislation coming to the Senate floor when the Democrats are in control of Congress. We strongly believe that what the party was directed to leadership to do was to change direction of the country. To end the war and to restore our civil liberties and to bring the government to be under the law. So this was really not a question of politics..."

Of course, if the senator didn't want reporters and the public believing that politics was involved, it might've been better for him to have someone other than his deputy campaign manager deliver the news of the planned filibuster.

As it is, Dodd should get a lot of free media during his filibuster, which will raise his profile more than barreling across Iowa would likely accomplish.

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Laws were broken.
If nobody is held accountable, there is no law left in the land.
Nobody is above the law.
There were legal ways to conduct this surveillance.
If you can't work within the law, then you change the law, not break it.
Any legislator who says it is OK to break the law, if you personally feel you need to, should not be in office.
This is not about defending the country from terrorists, it is about defending the country from it's own leader.

Goodluck Senator Dodd, at least we know that one Senator want's to keep this crooked Republican administartion from making George Orwell's "1984" come true.

San Miguel, no laws were broken. It's nice to know that once again the Loons on the Left are for the terrorists and against the American people. Why do you Loons love terrorists so much and hate Americans so much?

Good to see we still have a few Senators with a set of morals.

Good to know which ones we should keep after Ron Paul's elected. Given the recent House and Senate votes lately, a general cleaning is needed in order to restore our rights.

Screw you, James. As usual, your bias shines like a bright light on wet spit.

Sen. Dodd is standing up for his convictions. This is called 'courage,' not something you're familiar with in the midst of your schoolboy shock and awe of Bush/Cheney and the Republican party.

Yeah, go Dodd. Roll over to Bush and the NSA on the underlying issue, but fight tooth and nail for civil class actions against AT&T, where the only winners would be the lawyers. What a joke. I give him two hours of filibuster time before he has to go to the can. Then he can put a feather in his cap and claim that he fought the good fight but his colleagues (read: Hillary, Biden & Obama) let him down.

An obituary you may have all missed. Especially you neocon chickenhawks.

What a truely great man. And someone we can all learn something from.,0,4521039.story

Posted by: Herbie H. | December 17, 2007 2:27 PM

Posted by: John D | December 17, 2007 2:11 PM

Listen to all of these little Communists...I mean Wingnuts...screaming out in support of cementing Bush/Cheney's immoral, criminal, and dictatorial regime, they just LOVE to be told what to do and when to do it "thankyou sir, may I have another"?!?!

From Iraq, the "Global War on Terror," Torture, and now illegal wiretapping: The story is the same.

This Bush/Cheney House is built, Brick by Freaking Brick! And all because we're supposed to believe Osama bin Laden, is in a "cave," and they can't find him!

Cynicism is the least of what's happening here. All Americans will soon pay for the right of AT&T, Spy on their most intimate communications, and send them to Bush. Osama bin Laughing!

GOP Motto:

"San Miguel, no laws were broken. . . ."

Posted by: John D | December 17, 2007 2:11 PM

I wouldn't be so sure of that if I were you. There is a presumption in the law that Congress does not intend to perform an idle act in passing legislation. Instead, it is presumed that Congress intends legislation to have some purposeful effect. If someone didn’t violate the law, it would be pointless for Congress to include a retroactive immunity provision in the amended version of the FISA law – because no one would need or benefit from such protection. That being the case, the very fact Congress is attempting to pass a law with a retroactive immunity provision is pregnant with the admission that someone violated the law.

John D;
If no laws were broken, then why the insistence on immunity?
Immunity from what?
Being sued and winning?
Makes no sense to me.

John D.

No one is for terrorists. Don't be an idiot.

They broke the law (several in fact). Waterboarding is torture and illegal. Wiretapping without a warrant is illegal. Destroying evidence is illegal.

How hard it is to understand that this bill indemnifies the Telcoms from ANY misuse of their technology so the government can spy on you? If you think this is about "terrorists" you have a lot to learn.

You got nothing to hide? No porn sites visited? No pharmaceutical info that can be tracked? Nothing your boss might like to know?

And if you lose your job because some datamining puts your name on the wrong list, no recourse!

Harry Reid should be ashamed of himself for letting this turkey come to the floor.

I'm pro-Democrat, but these folks are driving me out of my mind with their lack of spines.

Time and time again they have simply backed down to the administration's demands.

The Republicans in the Senate have come out and stated that they will threaten to filibuster anything to simply make the Democrats look bad and they are doing it. Instead of forcing issues with the Republicans the Democrats simply back down and back down.

NOW we get various Democrats who are taking a stand about potential illegal activities and NOT folding to give the telecoms immunity, and the leaders of the Senate apparently aren't supporting them. What a group!

And John D., it is extremely apparent to most that illegal acts occurred, it is simply that they haven't reached the exposure of what exactly happened.

You know, it says a great deal about the state of journalism today when "lowly" bloggers understand the meaning of a conference call announcement stating participants will "speak with reporters on background" while, it seems, so-called national reporters do not.

It also says a great deal about the state of our nation when touring my state with Oprah Winfrey or Kevin Bacon is considered par for the course, but speaking for hours on the rule of law in front of a mostly empty Senate is painted as pandering.








There goes juannieed making up facts again things fit into his half pint view of reality. The fact is that Americans are being spied on. Americans. Don't you freakin' get it you greedy FOX News-humping draft dodging obnoxious gas-guzzling chickenhawks? Americans placing calls to Latin America are being investigated. How does protecting that privacy support the terrorists? The tired olde screed of these shameless fearmongering selfish torture-sanctioning heartless reality-denying hypocrites is beyond the pale!

"It's nice to know that once again the Loons on the Left are for the terrorists and against the American people. Why do you Loons love terrorists so much and hate Americans so much?"

Posted by: John D | December 17, 2007 2:11 PM

John D parroting someone elses lines again. Not an original idea in his head. God bless Sen Dodd! God bless the troops and America.

John D why do you hate the troops? Why do you hate America? Why do you hate civil right? why do you hate peoples right to privacy? Why?

John D-

Once again, for about the thousandth time, no one is saying that terrorist communications shouldn't be tapped.

If they are tapped, on calls within the United States, the Government should get a warrant, as the 4th Amendment to the Constitution requires.

The Constitution is not optional. It is not to be followed only when convenient. It is the law. period.

Why are you against the Constitution John? Why are you against the rule of law? Why do you hate freedom like the terrorists?

John W., I'm not sure I agree with your analysis that a retroactive immunity provision is an admission of liability. That is one possibility, but another is in the case of a gray area. This is especially significant in civil cases, with the lower "preponderance of the evidence" burden of proof. As you know, a skilled trial lawyer would be all over such a gray area, could probably get it past dismissal and SJ motions, and cost telecoms millions just to defend. In any class action that can get past a dismissal motion, there is potential exposure and costs which telecoms undoubtedly would like to avoid. However, asking for immunity from having to defend these actions is not the same as admitting liability.

By the way, this is a non-issue. Dodd has no real support in his filibuster attempt, and this is more of a dog-and-pony show for his campaign. Right or wrong, the bill will pass shortly with the immunity provision.

John E., I have been called several names in my life, but you are the first to call me a "communist". I guess I am also a “wingnut”, whatever that means. Thanks for adding to the discussion.

First, good for Dodd. He'll be literally standing up for our rights.

I agree with you, dogjudge. I’ve been disappointed in the Democrats’ lack of spine, and am hoping the likes of Dodd, Leahy and Teddy Kennedy will help them grow one.

As for your pseudo-patriotic claim that no laws were broken, John D, tell it to Chaney/Bush. Just dial a telephone number at random. They’ll be listening.

San Miguel, no laws were broken.

Posted by: John D | December 17, 2007 2:11 PM

Geographically Challenged Dumb Dumb Little Johnnie D, "the Joseph Stalin of Streamwood" - wiretapping American citizens without warrants is AGAINST THE LAW. Wiretapping American citizens without court approval is AGAINST THE LAW.

Why do you hate our rights so much?

Herbie H.

Let's see if rewording my statement clears up any ambiguity.

I didn’t mean to say that Congress was admitting liability for anyone, or creating any presumption for use in a trial. I meant to say that Congress doesn’t act without a reason. The law tells us we must presume Congress acted for a reason, and that it intends any proposed law to have some concrete effect. Thus, it only makes sense for Congress to propose a retroactive immunity provision if it has evidence to find that some telecom company stands in need of, and can benefit, from such a provision.

We can safely assume Congress intended to benefit telecom companies that have already done something to warrant suit against them. The need for immunity wouldn’t exist if it were simply to protect telecom companies from meritless claims. If protection from meritless suits was all that was at stake, Congress’ normal response would be to leave those companies to their remedies at law. After all, that’s why we have a judicial system. There are a number of inexpensive judicial procedures available to weed out meritless claims (e.g. demurrer/dismissal, judgment on the pleadings, and summary judgment). As such, immunity would only be valuable where a claim has enough factual merit to get past these procedures. A claim with that much factual support is not meritless.

Hence, the fact that Congress is proposing retroactive immunity is some circumstantial evidence that some telecom company is already good for a suit for damages. They had to have some evidence to support that conclusion. A policy to retroactively protect nothing is irrational.

"AJF", contrary to what you say, the US Constitution does NOT require a warrant for all searches. Not even for a criminal search, let alone a search during wartime.

Try reading the Constitution once. Try. Really. Try.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

So Bruce, where does that say my phone calls can be listened to without a warrant?

“ . . . , contrary to what you say, the US Constitution does NOT require a warrant for all searches. Not even for a criminal search, let alone a search during wartime.”

* * * * *

Posted by: Bruce | December 18, 2007 2:27 AM

You are technically correct Bruce. The Constitution does not require a warrant for every search. But it does state a preference for warrants (given the Fourth Amendment’s formal limitations on warrants); and it does require that every governmental “search” invading the reasonable expectation of privacy of “the People” shall not be “unreasonable.” Based on these principles, the Supreme Court has consistently held that a warrantless search is “per se unreasonable” under the Fourth Amendment unless it falls within one of a number of “specifically delineated and well-recognized exceptions.” (See Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984).) So, while warrants are not required in every case, the government has the burden of justifying a search conducted outside the judicial process (i.e. without a warrant) as “reasonable” under an exception to the general rule. (Id., at 749-50.)

It is also beyond dispute that People have an expectation of privacy in the content of their telephone conversations, such that a government intrusion into the content of the call, itself, violates their reasonable expectation of privacy. (See Katz v. United States, 389 U.S. 347, 353-54 (1967).) Therefore, wiretaps must also be justified by either a warrant or a recognized exception. (Id., at 354-57.) This is true in any case in which one party to the conversation is an American citizen, or an alien voluntarily located within the United States who has “developed sufficient connection with this country to be considered part of . . . [the] community.” (See United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 272-75 (1990) .)

As such, AJF is right in stating that warrants are generally “required” for wiretaps under these circumstances. Your observation that warrants aren’t required “for all searches” is really quite beside the point.

One must also observe that neither the Constitution, nor any of its component parts, are immediately suspended during wartime. In fact, the Constitution only gives Congress the power to suspend the writ of Habeas Corpus in “in Cases of Rebellion or Invasion . . .” (U.S. Const. Art. I, Sec. 9.) The fact the Constitution only provides one instance in which Congress might suspend the operation of a law means that only Congress, and not the President, has the power to suspend laws; and Congress’ power to suspend laws is limited to Habeas Corpus. (See Marbury v. Madison, 5 U.S. 137, 174 (1803) [“Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.”].) Thus, neither Congress nor the President have the right to suspend any other Constitutional rights in time of war, including the Fourth Amendment. Thus, we live in wartime with the Fourth Amendment protections of American citizens intact. There may be some instances when the dictates of “reasonableness” under the Fourth Amendment would permit warrantless wiretaps to further national security interests (see United States v. United States District Court , 407 U.S. 297, 321-24 (1972)), but such a warrantless search must still be only an “exception” to the rule, rather than a pretext to swallow the rule whole.

Ron Paul/ John W for President!

Thanks for kindly and coherently putting our local neoconservative know-nothings Bruce and John D in their place and providing some much-needed perspective on this and many other legal debates.

"John W" concedes that I'm "technically correct" that government searches only have to be reasonable, and that a warrant isn't required.

In other words, the search wasn't illegal. And, throughout U.S. history, wartime presidents such as Franklin D. Roosevelt have done such searches.

Thanks for conceding the whole issue, John!

Good luck Senator Dodd. Thanks for being one of the few who really care about Americans privacy, most of which is already lost. Bush and Cheney wouldn´t be so emphatic about protecting the telecoms if they had not violated the law in turning over--as they rolled over their privacy contracts with customers--all the phone and email content to the neocons to misuse. How can anyone not see it is clearly unlawful, illegal, and over-the-top disreputable?

Why aren´t more Americans disturbed by this? Even complicit Republicans can be the target of spying and loss of privacy to their detriment. First, Americans are the enemy; later on, the neocons will be suspicious of their own.....

And remember this spying on Americans began before 9-11, so it has nothing to do with protecting us from terrorists. What I see now is the US government as terrorist, torturer, and Big Brother. I hope it isn´t too late to reclaim the values Americans really mean to stand for.

John W., I agree that there is a presumption that Congress acts for a reason, but I don't think it necessarily follows that they must be acting because they know someone is liable. Shielding companies from frivolous lawsuits is a concern, and I don't agree with your above assertion that litigating a class action up to and including a summary judgment motion, which normally occurs after the close of fact discovery, is "an inexpensive judicial procedure". Quite the contrary. Another underlying issue here, an alternative reason for the immunity, is to shield the contents of NSA investigations from a civil discovery process, with liberal standards for relevance. I don’t think I have to elaborate on the importance of keeping NSA files on suspected terrorists from becoming public record.

As for the warrantless wiretaps, I agree generally with your Constitutional analysis, but think the issue is extingent circumstances. The classic example is a police officer outside a crack dealer’s home without a warrant, but having compelling evidence that he is inside destroying all the evidence. Courts have held that preservation of evidence is a contingent circumstance, justifying a warrantless search. In the arena of intercepting phone calls from oversea terror suspects, if an NSA agent is faced with an unexpected 30 second phone call from bin Laden himself, to someone inside the US, there is obviously no time to get a warrant. Is that an extingent circumstance justifying tapping the call? I believe it clearly is, as the info is lost forever if the agent doesn't act. The problem with this discretion is abuse - "quis custodiet ipsos custodes?" (who will guard the guards?). Everyone knows the NSA/CIA engages in activities for national security that we don't know about, and may not want to. The problem with this Administration, as opposed to others, is that they have lost the trust of a good deal of the country to exercise discretion in determining what circumstances are extingent.

In my view, warrantless wiretaps on incoming calls from terror suspects should be allowed, but safeguards must be in place. Warrantless taps must be retroactively approved by a court, and the practice should be limited as much as possible. Second, I think there should be a provision that any information gained from a warrantless wiretap can only be used in the context of investigating/prosecuting terror suspects that are a threat to national security, and should be strictly inadmissible in any purely domestic proceeding, criminal or civil.

John W" concedes that I'm "technically correct" that government searches only have to be reasonable, and that a warrant isn't required.

In other words, the search wasn't illegal. And, throughout U.S. history, wartime presidents such as Franklin D. Roosevelt have done such searches.

Posted by: Bruce | December 18, 2007 12:13 PM

Actually Bruce, just the opposite is true. The fact that a warrant isn’t required for all searches doesn’t make warrantless wiretaps instantly reasonable. As I already pointed out, a the lack of a warrant makes the ensuing search presumptively unreasonable. (See Katz v. United States, 389 U.S. 347, 357 (1967) [Searches “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.”].) As I also pointed out, the government bears the burden of justifying any warrantless search. This burden is not met by spewing words like “national security.” (See Coolidge v. New Hampshire, 403 U.S. 443, 461-64 (1971).) Instead, the government must factually demonstrate that a particular search falls within a well established and well delineated exception.

In other words, the fact a warrantless wiretap may be justified on national security grounds, doesn’t mean that one always will be justified on that ground. Each individual wiretap must be justified by its own particular circumstances.

The rule that each search must be justified by reference to its own factual circumstances immediately denies the government any justification on the basis of a blanket order – of the kind the President has issued (at least once). That’s because (as I mentioned), the President cannot suspend operation of the Fourth Amendment. He, and the rest of the government, must operate within its warrant and reasonableness requirements. If any wiretap was conducted pursuant to that blanket order, it must be justified under an exception.

The fact that F.D.R. would or did order warrantless wiretaps out of concern for national security hardly proves justification. None of the searches he ordered were ever subject to judicial scrutiny, and no attempt was ever made to justify them on national security grounds. I might add that neither custom nor the passage of time justifies unconstitutional behavior. So, you have found in F.D.R.’s practices the most slender of reeds upon which to hang the wholesale violation of people’s Fourth Amendment rights.

So, Bruce, where is the government’s justification? Unlike you, I am not willing to assume the government can justify its conduct. My own experience counsels against such an assumption. As James Madison would tell you, governments cannot be trusted because they are made up of men. That is conservatism in a nutshell.

Herbie H:

First, summary judgment doesn't have to occur only after the close of discovery. A lawsuit is frivolous if it is filed before the plaintiff has probable cause to believe a defendant has injured the plaintiff. Thus, summary judgment can be made, and resolution on it deferred, if the plaintiff can make a probable cause statement showing why the suit isn’t frivolous (e.g. what he or she expects to be able to eventually prove), and that further discovery is needed to meet his/her burden to rebut the defendant’s motion. This is a common occurrence in cases where a summary judgment is made almost immediately after suit is filed, on the basis of affidavits. But it has also been the occasion of stopping many frivolous lawsuits well before they got expensive.

Second, liberal discovery standards become very illiberal very fast when they run up against a legitimate claim of privilege. A plaintiff in a civil rights action will hit a concrete wall if he/she attempts to get discovery in a civil case from an agency like the N.S.A. The N.S.A. will respond to any such request by asserting its national secrets privilege, and that will be the end of that. Courts don’t side with plaintiffs in such circumstances. Thus, it is unlikely that Congress would be concerned with attempts to make N.S.A. records on terrorists public.

The above stated reasons, added to what I have already stated – and the fact the Administration is the moving force behind the immunity legislation – tells me that Congress is trying to whitewash something more sinister than you make it out to be. Maybe it’s just me. I don’t trust the government – ever. But I think we will have to respectfully differ over the motives of Congress in this matter.

Third, you are correct in stating that the presence of “exigent circumstances” is one of the well established exception to the warrant requirement. And, yes, the existence of probable cause plus the inability of a government agent to seek a warrant before evidence is lost – does constitute exigent circumstances. However, the conclusion that a warrantless search is reasonable under the “exigent circumstances” exception is also requires proof of facts to support the existence of probable cause and the inability to get a warrant, and not merely the assertion that such was the case.

Fourth, the related question of who guards the guardians is easy: The courts. The current FISA law already requires search warrants for foreign intelligence gathering, and it already permits applications for retroactive search warrants if application is made within a number of days after the search. Thus, the difficulty lies in expending the man-hours to do the job correctly, and not because the law poses some insuperable barrier (as Duh’bya and the former A.G. would like us all to believe). Where I question the FISA law is that it doesn’t actually require any proof of “exigent circumstances” or another exception to justify a retroactive warrant. This turns the normal preference for warrants on its head. The balance of your suggested limitations are commendable, but not currently required, and not likely to come about soon in the current fog of governmental gridlock.

John W., I think we are getting caught in a nuanced legal discussion, but I think the argument started about cost of defense. I know an MSJ can be brought at any time. That is theory. In practice, it is foolish for a defendant to fire this bullet until they have deposed the witnesses that can possibly shoot it down. When you file your MSJ, you show your hand. If there are still favorable fact witnesses to the Plaintiff that haven't been locked into their testimony through deposition/affidavit, Plaintiff's counsel can simply have them execute an affidavit, and know exactly what to say in it to defeat the motion. Litigating to a summary judgment motion in a class action is neither an inexpensive nor expedient process. I think I said it in one of the earlier posts - the only winners in these cases are the lawyers.

As for the NSA privilege argument, I think you are right on in that it will be an issue early on in the case. The trial court will have to make a decision, and one way or another, it will be appealed. Since it is a matter of national security, I wouldn't be surprised if that issue went to the SC. Then, after years of appeals, the matter will be back at the trial court level, and we still haven't started discovery. This again will be ridiculously expensive.

I share your distrust of the government, and it may be that they are trying to cover up something. Maybe the Administration is afraid that this civil lawsuit that will expose government officials to charges - obviously someone told Verizon, etc. to turn over the information, and probably gave them assurances of its legality. Maybe the Administration does not want those people named. Maybe it leads all the way to Bush. This is of course conjecture. I don't know why they are seeking immunity, and I'm not going to assume wrongdoing until I see more evidence.

As for the Courts guarding the guards, their involvement is obviously after the fact in this context. I think Americans are uncomfortable with shadowy agencies like the NSA/CIA being able to exercise discretion about whose phone to tap. Indeed, the class actions are not about the information gained in the taps used against them, but the act of a warrentless tap itself violating their privacy rights. Indeed, if a secret court determines ex post facto that a tap was unlawful, the person who's call was tapped probably never will even know about it. Americans are uncomfortable with this prospect, as no matter what involvement the courts ultimately have, there is still going to be a great deal of discretion in the hands of the NSA, and I don't really see any way around that.

I don't know if you are still following this blog, but if you are, I appreciate your comments. You are one of the few people in the Swamp who uses logic and reasoning to make your points instead of the usual rhetoric and insults.

For once in my! life time Im thanking God for a wacko-liberal! Here is one conservative that supports you, Sen. Dodd keep protecting Americans civil liberties. Even if it passes the people will prevail, 1776 is the answer to 1984!

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