As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, October 18, 2007

Pardon Me While I Throw Up In My Mouth

The Senate decides to legislate their own irrelevance. After all, if they're supposed to be a lawmaking body, yet are passing laws designed to retroactively nullify federal laws, do they really have a purpose?

Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.

Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers [...]

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Retroactive immunity would be a grave injustice. It would effectively end all investigation of Bush's lawbreaking activities on surveillance, and would allow the telecoms essentially to buy their way out of criminal liability. The cost of this is that the Senate Intelligence Committee got to see a couple documents after asking for them for almost a year. I don't see the point of granting immunity in exchange for knowing what you just granted immunity for. ESPECIALLY if, unlike in a criminal case where you immunize the little guys to flip them and get to the big kahuna, nothing is going to come of the immunization. What, are they going to call for impeachment now? No.

Telecom companies have been aiding and abetting spying on their customers, repeatedly, for six years. The Senate believes that we should let them off the hook for this rampant violation of federal law. That's absurd. We used to have a Congress that understood the importance of civil liberties. In the time of the Church Committee, they set up a structure to deal with all of these surveillance questions. It's been eviscerated by the Bush Administration and now the Congress is about to go alng with it. This is what your country wants to let happen:

We have evidence of an NSA-controlled room in the Folsom Street AT&T facilities in San Francisco. We have evidence that AT&T diverted copies of everyone's Internet traffic into that room. And we know that there's very sophisticated equipment in that room that is capable of doing real-time analysis of the Internet traffic that is getting routed into there. [...]

...the FISA law already has very broad immunities for the telecoms, and if it was the case that they were acting in good faith with an honest belief that what they were being asked to do was legal, then they would already have immunity, and they don't need an additional immunity from Congress for that.

And it's also the case that they made all these arguments to Judge Walker and Judge Walker's decision on this addresses those arguments very directly -- he said no reasonable phone company in the position of AT&T could have thought that what they were being asked to do was legal. It is not the case that this phone company could have believed that the wholesale surveillance of millions of its customers for five years, six years and counting, could be legal under the law.

I know you're not supposed to throw the word "betrayal" around or you risk a sense of the Senate resolution, but that's exactly what this is.

We have a few allies on the civil liberties side in the Senate. And that's all we need. Arlen Specter has come out against immunity, but he's hopeless. Since most of the other Senators are awash in telecom donations and in the tank, it really falls to those who have a sense of principle or a stake in the outcome. Russ Feingold could step up and put a hold on this and end the whole thing; he has little use for the "comity" of the Senate. And Chris Dodd could jumpstart his campaign.

Dodd's uniquely placed to do something. He isn't a current frontrunner, but he is respected enough and enough of an insider that he can get on the teevee a bit. He has made these issues a relatively central part of his campaign. And, what do you know, he's actually in the Senate.

He can put a hold on this, and then take the case to the public. I don't know why Democrats think they need to stand with Mr. 24%, but it's time for other Democrats to make them defend why they feel the need to do so.

I would immediately support Chris Dodd if he took this step. It would show more leadership that anyone currently in the race.

Telecom amnesty implicates not only all of the issues raised by warrantless surveillance and the rule of law, but really calls into question the basic fairness of our entire political system, i.e, whether the wealthiest and most powerful corporations in Washington can literally buy their way out of lawbreaking. Anyone who boldly impedes what would be this bipartisan travesty -- and a "hold" on an issue of this magnitude would, in the context of Senate customs, be very bold -- is someone who will have demonstrated genuine leadership on a truly critical issue. There has been precious little of that thus far in the presidential race.

Sen. Dodd, our nation turns its longing eyes to you. Talking about a filibuster won't do it; there aren't 40 votes in the Senate for the rule of law (yes, you read me right). Do your duty and defend the Constitution; the benefits will be limitless.

UPDATE: Jack Balkin:

The argument against immunity is that the telecom companies were also represented by high priced counsel and they could determine for themselves whether the program was legal. If they believed it to be legally dicey, they should have hesitated without legislative or judicial authorization. If Presidents can go to any private company and encourage them to violate the law and then get retroactive immunity for the violation, this will undermine the separation of powers. Presidents will be encouraged to violate all sorts of laws-- even laws like FISA that are carefully crafted to constrain executive action-- secure in the knowledge that they can always get Congress to clean up their mess later on. The Detainee Treatment Act and the Military Commissions Act are not precedents for even more immunities; they are bad precedents that show that Congress is all too willing to immunize even the worst offenses-- including war crimes-- as soon as the President says the magic words "terrorism" and "national security."

Congratulations! You have just lost your legal system! Please return home and watch Dancing With The Stars.

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