The Real Betrayal

As I've said over and over, it's going to be next to impossible to restore habeas corpus with this Congress and this President. Cloture on the Leahy-Dodd Amendment failed 56-43 today. They added a motion to reconsider, so it may still yet pass, but they'd need 67 votes to get past Bush's veto pen, and 290 in the House (people keep discounting that as if only the Senate exists, but you're not going to be able to get 290 votes for practically anything in the House). Yes, you could continue debate until the cows come home, but not only is it going to amount to nothing, but the education of the public has not been cemented to force passage. Democrats already let this go; constantly saying "we were tricked!" gets old fast.

The real betrayal here is the continuing betrayal of American values by both the Bush Administration and a pliant Congress, who always seem to be trying to fix what they could have blocked in the first place. Today comes news that Democrats may allow retroactive immunity for telecommunications companies that allowed the use of their equipment to spy on Americans, the extent of which we still don't even know.

Chairman Conyers: “Let me put it like this: how many have been overheard? I mean you’ve got minimization techniques, you wouldn’t have it if somebody wasn’t being overheard?”

McConnell: “Sir I don’t have the exact number, I’ll be happy to try and get the number provided to you.”

Conyers: “That is very, very critical.”

We already know that FBI data mining was far more expansive than at first believed. Now the Director of National Intelligence can't admit how many Americans have had their privacy violated, and the Democrats want to let telecom companies off the hook for enabling that, telecom companies who both he and the new acting Attorney General have decades of ties with? Here's Glenn Greenwald:

The FISA capitulation, though, was probably even worse. It occurred when they supposedly control the Congress. They enlarged the President's powers under the very law that he has been violating for years. They gave the Bush White House what it demanded even though the White House continues to provide them with no meaningful information about what was done during all those years when they eavesdropped on Americans in secret. And Democrats passed the law in a frenzy, under the crassest and most transparent exploitation of the Terrorist Threat ("a Terrorist attack is about to happen in DC and the blood will be on your hands unless you pass the bill we dictate").

Granting retroactive immunity to telecom companies for past lawbreaking is so plainly unjustifiable, even dangerous, that it ought to require no real debate. That Congressional Democrats are even considering submitting to this demand, let alone that they are likely to do so, dispels any doubt about what they really are.

First, retroactive immunity turns the "rule of law" into an even greater mockery than it has been for the last six years. The central premise in granting immunity is that telecom companies did nothing wrong -- even if they violated the law -- because they cooperated with warrantless spying at the behest of the President.

But we don't actually live in a country where private actors are permitted to commit crimes and violate laws provided that the President tells them that they should. The President has no greater power to authorize others to break the law than he does to break the law himself. Quite the contrary, Article II of the Constitution imposes the opposite obligation: "he shall take Care that the Laws be faithfully executed." Lawbreaking is still illegal even if George Bush says it should be done. Does that principle really need to be explained?

Apparently, yes, and if the Democrats capitulate on this, they'll take ownership of all of the Bush Administration assaults on civil liberties and the rule of law.

This underscores what I think is a critical point that cannot be emphasized enough. In late 2005 and early 2006, when I and others first began writing about the assault on our Constitution from this administration in the wake of the NSA scandal and the Jose Padilla travesty, the overarching issue was lawlessness. The administration's most radical and disturbing "terrorism" policies were undertaken without any legal authorization whatsoever, and frequently, in direct violation of the law.

But over the past twelve months, that has become less and less true. On every front of executive power -- from surveillance to detention to interrogation -- what was previously covert, lawless radicalism has now become the legally authorized and Congressionally endorsed policy of the United States, on a bipartisan basis.

On a strictly quantitative level, it is true that Republicans have been more supportive than Democrats of these policies -- in the sense that more Democrats cast votes against them -- but Democrats have done nothing meaningful to stop any of it, even when they could. Indeed, paradoxically, Democrats have actively enabled and endorsed this extremism more and more as they have gained more power. As a result, what were the illegal policies of the Bush administration have become lawful as the result of a Congress which does nothing when executive lawbreaking is revealed except enact legislation to legalize the behavior.