Hullabaloo

Monday, March 03, 2008

 
The Truth About Bush Immunity Setting In

by dday

The Washington Post channels me by figuring out that telecom immunity is really Bush immunity.

Nearly 40 lawsuits, consolidated into five groups, are pending before a San Francisco judge. The various plaintiffs, a mix of nonprofit civil liberties advocates and private attorneys, are seeking to prove that the Bush administration engaged in illegal massive surveillance of Americans' e-mails and phone calls after the Sept. 11, 2001, terrorist attacks, and to show that major phone companies illegally aided the surveillance, including the disclosure of customers' call records.

If the cases are allowed to proceed, plaintiffs' attorneys say, the courts could review, in secret if necessary, any government authorizations for the surveillance. The process might also force the disclosure of government memos, contracts and other documents to a judge, outlining the legal reasoning behind the warrantless wiretapping program.

Perhaps most important, disclosures in the lawsuits could clarify the scope of the government's surveillance and establish whether, as the plaintiffs allege, it involved the massive interception of purely domestic communications with the help of the nation's largest providers: AT&T, Cingular Wireless, BellSouth, Sprint and MCI/Verizon. (Verizon Communications bought MCI in 2006.)

"I think the administration would be very loath for folks to realize that ordinary people were being surveilled," said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which filed the lead lawsuit, against AT&T.

It's beyond clear that the entire brouhaha over FISA comes down to this: Bush wants to keep his lawbreaking secret, and shutting down the ability for courts to get to the bottom of it, sanctioned by the Congress, would do so. They don't want to save the telecoms from financial ruin, they want to stop discovery. In fact, it's very likely that the telecoms have already been indemnified. That's why their main trade group opposes blanket amnesty.

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

This is about government cleaning up its own mess and sweeping it away. And the Democrats are eager to aid in that process, eliminating the possibility that Americans find out how much of their communications were gathered for surveillance, who requested the information, and who authorized the program. Glenn Greenwald gets this right:

The whole drama they started when they refused to pass the Senate bill by the deadline was never about anything substantive. They were just throwing a little petulant tantrum because they felt they were being treated unfairly again because they were given only a few days to comply with the President's orders, when they wanted a couple of weeks to comply.

And their irritation wasn't even directed at the President as much as it was at the Senate for being so unfair in waiting until the deadline to pass a FISA bill, thus giving the House only a small amount of time to capitulate in full (on CNN, Chairman Reyes refrained almost completely from criticizing the White House, instead reserving his criticism for the Senate over this procedural insult). The only "principle" the bulk of Congress believes in is the preservation of their own ceremonial customs. That's all this drama was ever about [...]

But what is somewhat baffling in all of this is just how politically stupid and self-destructive their behavior is. If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. They exposed their freshmen and other swing-district members to attack ads. They caused their base and their allies to spend substantial energy and resources defending them from these attacks.

And now, after picking this fight and letting it rage for weeks, they are going to do what they always do -- just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President. They're going to cast the appearance that they engaged this battle and once again got crushed, that they ran away in fear because of the fear-mongering ads that were run and the attacks from the President. They further demoralize their own base and increase the contempt in which their base justifiably holds them (if that's possible). It's almost as though they purposely picked the path that imposed on themselves all of the political costs with no benefits.

Because at the end of the day, they have a powerful interest in covering their own original sin: failing to speak up about rampant lawbreaking by the executive branch in the first place. Their first instinct in the face of this lawbreaking is to wonder how badly they will be blamed for it. And so they'd rather bury it so that they can feign outrage. Of course, the problem is exactly as Greenwald describes; the Democrats will ALWAYS be derided by Republicans for failing to protect America no matter what they do or what cover they provide. Why take such a stand for just a couple weeks if the eventual goal was going to be to immunize the President all along?


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dday 3/03/2008 11:01:00 AM |