Posted by WLS:
Last week former Nixon White John Dean made the latest of his frequent appearances on Doltermann’s show.
While covering the FISA compromise legislation, and the retroactive immunity for telecommunication companies contained in the legislation, Dean and Doltermann had the following exchange:
DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”
OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.
DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.” So, as it goes to the Senate, maybe Obama‘s got a shot to take, you know, a future look at this thing and not let them have the pass that they think they‘re getting.
One problem with this brillant exchange of ideas — there’s a long-standing line of legal precedent that says its a violation of the due process clause for the goverment to tell somebody to do something with the representation that its legal, and then turnaround and prosecute them on the basis that the conduct was illegal. From Cox v. Louisiana, 379, US 559 (1965):
In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344, this Court held that the Due Process Clause prevented conviction of persons for refusing to answer questions of a state investigating commission when they relied upon assurances of the commission, either express or implied, that they had a privilege under state law to refuse to answer, though in fact this privilege was not available to them. The situation presented here is analogous to that in Raley, which we deem to be controlling. As in Raley, under all the circumstances of this case, after the public officials acted as they did, to sustain appellant’s later conviction for demonstrating where they told him he could ‘would be to sanction an indefensible sort of entrapment by the State-convicting a citizen for exercising a privilege which the State had clearly told him was available to him.’ Id., at 426, 79 S.Ct., at 1260. The Due Process Clause does not permit convictions to be obtained under such circumstances.
The President issued an Executive Order authorizing the program, and the Administration’s agents then went to the telecomm companies to have them put in place the technical infrastructure to allow NSA monitoring consistent with the Executive Order.
And John Dean thinks the telecomms might be subject to criminal prosecution for their compliance after Congress insulates them from civil liability???
What a moron.