The Grand Bargain: Not So Grand

So Scottish Haggis (h/t emptywheel) Arlen Specter is looking for a grand bargain on telecom immunity.

At a markup on a bill to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), Sen. Arlen Specter (R-Pa.) plans to offer an amendment that would make the federal government — instead of the phone companies — the defendant in about 40 pending lawsuits across the country.

The mark up starts Thursday and will continue next week.

“I think it’s very important that the courthouse not be closed so there can be a judicial determination to see if there have been any violations of privacy rights,” Specter said. “I think the telephone companies were good citizens, and should not suffer from what they did. And my idea is to have the government substituted as the party.”

This is completely ridiculous. The telecoms are already using this tactic in court, arguing that the law already grants this. The problem, of course, is that the government will merely use the state secrets privilege to ensure that nobody gets to the bottom of the actual lawbreaking here. Telecoms wouldn't be able to credibly invoke this, and courts usually allow the government wide latitude in keeping things secret. So the practical effect of Specter's bargain would be to keep the truth about what kinds of spying have been accomplished on American citizens hidden from view far into the future. And the only difference for the telecom companies, as Kagro X explains, is that they would be able to keep their legal fees now being spent on pushing the exactly same legal strategy through the courts that Specter would rule by Congressional fiat.

This is a giveaway to companies that should have known better. There is absolutely no reason to compromise. The law is clear and no person or corporation is above it. The markeup in the Senate Judiciary Committee has been delayed to next week; there's plenty of time to tell your representatives NO on telecom immunity.