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Tilting at Windmills

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February 15, 2008
By: Kevin Drum

TELECOM IMMUNITY....I mentioned yesterday that although I oppose telecom immunity in the FISA bill currently being considered by Congress, I'm not "hellbent" on it. Several readers were unhappy about that and wanted to know exactly what I meant. So here it is.

First, let's set the stage right after 9/11. Al-Qaeda had hijacked four airplanes and driven them into three buildings, killing over 3,000 people. We didn't know if more attacks were imminent. A week later people started dying from letters contaminated with anthrax and we had no idea who was behind them or if more was to come. There were seemingly credible reports at the time that Osama bin Laden might be close to acquiring a nuclear bomb. Our intelligence services were essentially running both deaf and blind.

As I've mentioned before, in a genuine national emergency like this I don't have a problem with the president assuming extraordinary powers for a short period. If, right after 9/11, George Bush asked telecom companies to open up their data streams to the NSA for a few weeks or months on an emergency basis until legislation could be passed formalizing new rules for data collection, I'd expect them to go ahead and comply.

I realize, of course, that not everyone agrees with this position. Some people have a more absolutist view of the law and believe there's no excuse for breaking or stretching it regardless of circumstances. But I'm not one of them: as long as it's limited to a short while after 9/11, I'm OK with an expanded surveillance program.

The problem, of course, is that it didn't go on for only a short while. After things had quieted down, Bush's Department of Justice produced memos justifying the continuing legality of the program even without enabling legislation. Congress was, as near as I can tell, informed about what was going on and offered no resistance. (A few Democrats have since weaseled a bit about whether they were really, truly informed, but frankly, I don't believe them. I think they knew what was going on and were too scared to register any complaints.)

And so the program continued. And the telecom companies were stuck. They couldn't go public, obviously. And there was never any appropriate time to suddenly pipe up and stop cooperating. The administration argued that the program was perfectly legal even under current law, and all along there appeared to be bipartisan support for that position in Congress. So everything just drifted along until James Risen blew the whistle in the New York Times.

And now who's being asked to take the fall? The president? The Department of Justice? Congress? Of course not. It's the telecom companies who are being sued.

Now, it's inevitable that some people are going to read this and think that I'm concocting some kind of defense for telecom immunity. I'm not. I oppose it. In the end, the telecoms are big boys with big legal staffs, and they knew exactly what they were doing — and providing them with retroactive immunity at this point sets a terrible precedent and creates all sorts of perverse incentives to break the law in the future. At this point, if they think they can make a case that they acted in good faith and shouldn't be held accountable, they need to make it to a judge and jury. If they have a good case, they'll win. If they don't, they'll lose.

Still and all, the reason I'm not hellbent on this view is because it doesn't seem right that the least culpable party is the one getting taken to court, while the most culpable parties — the president, the DOJ, and both Democrats and Republicans in Congress — get off scot free. Sure, that's life. It's unfair sometimes. I get it. But I don't have to like it.

UPDATE: Just for the record, the Senate version of telecom immunity in S.2248 applies only to activities taken after 9/11. There have been reports of possibly illegal NSA/telecom activities being initiated several months before 9/11, but S.2248 wouldn't apply to them. Here's the relevant text:

[A] covered civil action...shall be promptly dismissed, if the Attorney General certifies to the court that (A) the assistance alleged to have been provided by the electronic communication service provider was (i) in connection with an intelligence activity involving communications that was (I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States....

If I'm misreading this, or reading the wrong version of the bill, please let me know in comments.

UPDATE 2: Josh Patashnik notes that it was entirely possible to target the more culpable parties if we'd wanted to: "There was an ideal solution to this problem: the Specter–Whitehouse substitution amendment, which would have allowed lawsuits to go forward but would have substituted the United States as a defendant, letting the telecoms off the hook." Needless to say, the White House opposed this.

Kevin Drum 12:46 PM Permalink | Trackbacks | Comments (111)

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Comments

I was under the impression that at least some aspects of the program began about six months before 9/11.

Posted by: Morat20 on February 15, 2008 at 12:47 PM | PERMALINK

No, our intelligence services were NOT running both deaf and blind. They had considerable advance warning of what was planned, but the White House elected not to do anything.

Crisis is no excuse for panic

Posted by: H.C. Carey on February 15, 2008 at 12:49 PM | PERMALINK

Sometimes, there has to be a reckoning. Otherwise, there will always be an excuse for breaking the law.

Posted by: Gore/Edwards 08 on February 15, 2008 at 12:51 PM | PERMALINK

Morat20: That's true, but the telecom immunity law applies only to actions taken after 9/11. Anything before that is open to legal action regardless.

Posted by: Kevin Drum on February 15, 2008 at 12:51 PM | PERMALINK

You sure Kevin? There were amendments to that effect but I thought the Seante Bill was a forever blanket immunity.

Posted by: TonyC on February 15, 2008 at 12:53 PM | PERMALINK

Kevin, if you're correct in your response to Morat20, you should make it an update to your post. And link to the text of the bill to that effect.

Like TonyC, I also understood the immunity to be blanket, and the fact that the Administration sought & obtained the telecoms' help in blatantly violating FISA well PRIOR to 9/11 is a major reason this whole issue is so aggravating and maddening.

Posted by: Reader on February 15, 2008 at 12:55 PM | PERMALINK

TonyC: The last time I looked at the text of the bill was in November, and it clearly stated that immunity was only for actions after 9/11. But I might have misread it, or the text might have changed since then. I'll stand corrected if anyone can provide a reference.

Posted by: Kevin Drum on February 15, 2008 at 12:57 PM | PERMALINK

I think your positions are contradictory. If they were doing the President's bidding and that's okay, you should support immunity.

I think as big boys with big lawyers they could reasonably tell the president, sure, but we expect you to bring us fisa court warrants within 72 hours, or else we shut it down.

How can you expect ANYONE to stand up to any pressure if you can't expect enormous companies with enormous pockets and 15" long lawyer penises to stand up to pressure?

Posted by: jerry on February 15, 2008 at 12:57 PM | PERMALINK

Two things wrong with Kevin's argument. First, the illegal activities began before 9/11. Second, Kevin complains that most culpable parties will get off free. But that is the point of the amnesty. It prevents forever the airing of exactly what went on and who did what. You don't really believe that Bush is fighting all this hard just on behalf of the telcos?

Posted by: Benjamin on February 15, 2008 at 12:57 PM | PERMALINK

But the spying began months before 9/11, so what was the excuse then. Didn't one telecomm company that refused to participate find itself under investigation with criminal charges.

Get real. The entire purpose of unwarranted spying is to have info to hurt political enemies, steal insider information, come up with blackmail material, and such other criminal applications.

It never has had anything to do with national security.

Posted by: jim p on February 15, 2008 at 12:58 PM | PERMALINK

"Congress" was not informed. A handful of in-the-tank Congresspeople were given partial information and sworn to secrecy because if they tried to do anything about it we would all die. Jay Rockefeller wrote a letter to Dick Cheney whining that they hadn't told him enough, then did nothing. Bob Graham has said that he wasn't told that there would be warrantless wiretaps. Congress a whole found out when the rest of did- via the NYT.

Posted by: Bloix on February 15, 2008 at 12:58 PM | PERMALINK

They started the program before 9/11.

Which, of course, also demonstrates that it didn't do much to enhance US security.

Moreover, multiple sources report that the administration had no interest in pursuing non-state actors. this program was decidedly NOT to track stateless terrorists; Richard Clarke couldn't get a meeting about stateless terrorists with Rice before September 2001.

Kevin, I believe, is falling into the trap that the administration sets for observers--that they wouldn't do something extreme and authoritarian without good reason.

There is no known good reason for the beginning of this program.

But it certainly was not because of 9/11. This is a lie. In fact, if Bush is speaking and refers to 9/11, it's best to assume that he is lying.

Posted by: jayackroyd on February 15, 2008 at 1:00 PM | PERMALINK

Still and all, the reason I'm not hellbent on this view is because it doesn't seem right that the least culpable party is the one getting taken to court, while the most culpable parties — the president, the DOJ, and both Democrats and Republicans in Congress — get off scot free. Sure, that's life. It's unfair sometimes. I get it.

But you still don't get the major point here: without the "least culpable party" (a description that's at best tenuous given how little we know about what really happened, but I'll spot it to you) going to court, the "most culpable" parties will get off scot free. This litigation proceeding is the only chance we have of ever finding out exactly what the Bush administration was doing and who they were doing it to here.

One can argue that they still won't hang for it--and they almost certainly won't--but getting that information out into the open is a significantly worthy cause, both for the purposes of public information (and, potentially, a little justice) now, and for preventing such monstrous abuses in future.

Posted by: shortstop on February 15, 2008 at 1:00 PM | PERMALINK

After things had quieted down, Bush's Department of Justice produced memos justifying the continuing legality of the program even without enabling legislation. Congress was, as near as I can tell, informed about what was going on and offered no resistance.

That's not true. And two things point to how desperate they were--the midnight visit to John Ashcroft and the discovery that John Bolton was using NSA wiretaps that included the names of ten US persons, which was redacted. That list likely included conversations Joe Biden and John Kerry had with foreign governments regarding nuclear disarmament and arms deals, all of it within the normal practice of US Senators who speak to foreign governments in the course of the work. This is how, for example, Biden was able to speak directly to Pervez Musharraf--they had an open working relationship.

There's no way Ashcroft would have such a visceral reaction to the illegality of such a program and there's no way Bolton would have been allowed to use NSA information in the course of his normal duties if it wasn't for the fact that they were spying on Democrats and using the information against them.

But hey--we won't know for sure until they declassify everything. See you in 2050, right here, to continue the discussion. Maybe I'll hire someone to comment on my behalf if I'm not around.

Posted by: Pale Rider on February 15, 2008 at 1:03 PM | PERMALINK

The least culpable party was probably Joe Nacchio and QWEST.

He appreciates your support for rule of law, Kevin.

Posted by: jerry on February 15, 2008 at 1:04 PM | PERMALINK

As I've mentioned before, in a genuine national emergency like this I don't have a problem with the president assuming extraordinary powers for a short period.

First, please point out the provision in the Constitution that allow the president to assume extraordinary powers for a short period.

Second, what the fuck? Maybe in a genuine national emergency in which all other organs of government were paralyzed and we were faced with anarchy, but so far as I know the courts continued to sit, the legislature continued to function, etc. -- what national emergency prevented the executive from working with the judiciary and legislature to make sure that the laws were duly being followed?

Posted by: Stefan on February 15, 2008 at 1:05 PM | PERMALINK

Fear and loathing is a Republican trait.

Courage and Hope is a Democratic one.

You know who and what you are when you hear your master's call.


Posted by: Pallomine on February 15, 2008 at 1:05 PM | PERMALINK
As I've mentioned before, in a genuine national emergency like this I don't have a problem with the president assuming extraordinary powers for a short period.

So who gets to determine if there is a 'genuine national emergency'? The Administration? The Phone Companies? If so, what's to stop them from setting an extremely low bar for 'genuine national emergency'? After all, we know that "if the Democrats win the Presidency they'll surrender to the terrorists" - sounds like a 'genuine national emergency' to me - must be OK for the Phone Companies to do some wiretapping on behalf of the Administration then!

FISA provided all the Administration needs to wiretap legally post 9/11 - it was a secret body with very low requirements that even provided the option for retroactive approval. The Administration felt that was too burdensome and the Phone Companies didn't want to upset the powers-that-be by saying, "We're happy to do this for you - get a warrant and we're good to go."

So now they're desperate for cover and they and their friends are trying to pretend that somehow unless they get immunity getting them to wiretap in the future will be more difficult.

Hopefully getting them to provide illegal warrantless wiretaps in the future WILL be more difficult - that's the whole point!

Posted by: Shaun on February 15, 2008 at 1:07 PM | PERMALINK

shortstop hits it out of the park. Next thread.

Posted by: corpus juris on February 15, 2008 at 1:09 PM | PERMALINK

Make that:

Fear, Loathing and Greed is a Republican trait.

Courage, Hope and Justice is a Democratic trait.

You can't be the land of the free if you are not the home of the brave.

For all their talk about freedom and liberty, we will know that the Republican's don't really mean it until they abandon the call to fear and embrace the summoning of courage.

You can't face and adequately address problems if you are always afraid, niether can you be truly free.


Posted by: Pallomine on February 15, 2008 at 1:10 PM | PERMALINK

So let's cap the damages the telco's are subject to to $1 in this case. The point is the legal discovery process, not punishing the telco's.

Posted by: Ken on February 15, 2008 at 1:10 PM | PERMALINK

What Shortstop said.

Also, I search in vain for a reference to Qwest, the telecom that didn't cave, and was punished by the WH for its temerity (or the fact that its legal staff and executives had the only 15" long penises among the telecoms).

Viewed another way, this argument for telecom immunity is a variation on the Bush Admin's tactic of holding hostages -- give ATT et al. immunity or they get hurt -- to shield themselves from possible exposure of wrongdoing.

And this is the strategy only because WH's asserting state secrets on behalf of the telecoms is too far fetched. Or maybe its just not yet timely, as the cases haven't moved forward, and we can look forward to it as the next gambit!

Posted by: MaryCh on February 15, 2008 at 1:11 PM | PERMALINK

Of course, Kevin is just making an argument akin to the ticking-bomb scenario fallacy, which says, why not legalize before the fact acts that can only be justified (if ever) after the fact.

Retroactive immunity would set a precedent for companies to violate the law whenever the White House claims national security. It would also preclude us from knowing (and possibly forgiving) what has already happened, because mark my words every piece of evidence in White House control will be destroyed by January 19, if it hasn't already. The only way we'll ever know what happened, and whether it was forgivable, is to sue the companies involved.

Posted by: bob on February 15, 2008 at 1:11 PM | PERMALINK

Regarding Blanket Immunity:

Yes and No.
Yes, you've got your Sept11 to 1/17/08 provision.
But there's also the "If GWB said it was legal then it was so yar boo sucks to you" provision.


(1) IN GENERAL- Notwithstanding any other provision of law, a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed, if the Attorney General certifies to the court that--

(A) the assistance alleged to have been provided by the electronic communication service provider was--

(i) in connection with an intelligence activity involving communications that was--

(I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

(II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

(ii) described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--

(I) authorized by the President; and

(II) determined to be lawful; or

Posted by: TonyC on February 15, 2008 at 1:11 PM | PERMALINK

You said it yourself Kevin, It sets a terrible precident. If that's true, how can you say your not hell-bent on holding them accountable?

Posted by: DA on February 15, 2008 at 1:11 PM | PERMALINK

Wow, incredibly bad logic.

Think of another scenario: the President is a partisan, pro-war criminal (not hard to imagine) that does not believe that anyone who identifies themselves as a Democratic should have a job. he tells a bunch of employers that they should stop hiring Democrats. These companies turn around and discriminate against anyone they suspect of reading Washington Monthly (Oh, the horror).

Should these companies be libel for breaking the law? Damn right they should. And just because the President put them up to it does not get them off the hook.

You can dance around the issue all you want, but justifying criminal behavior because of "national security" is a ruse.

If you don't like the law you are about to break change the law. Otherwise, be willing to face the consequences.

Oh, and Kevin, using your logic it would be OK to commit any crime . . . for a short time. I guess bank robbers would simply argue that they had a "cash emergency" and needed some cash for a short time, but promised to not steal later on after the cash emergency was over.

Posted by: Dicksknee on February 15, 2008 at 1:12 PM | PERMALINK

I'm not all that interested in seeing any telecom execs go to prison over this.

I do want to hear their testimony.

Oh yeah, And I want a quid pro quo -- We (the people) give them retroactive immunity in exchange for net neutrality. Forever.

Posted by: Joseph Palmer on February 15, 2008 at 1:12 PM | PERMALINK

The President didn't get off scot free.

The President WAS held accountable.

Various members of Congress talked about impeachment, the functional equivalent of a jury trial of the telecom companies.

The fact is that when Congress looked at the actions of the President they decided it wasn't even worth investigating. This is the functional equivalent of a DA not even bothering with a grand jury.

Now, if the telecom industry broke the law then they should have to defend themselves.

President Bush defended himself. He knew that the 'jury' would never convict him. He knew there was zero chance that 67 Senators would vote to convict him so he was, and still is, able to break virtually any law without having to pay a penalty.

The fact that the President has a get out of jail free card doesn't mean we should give one to everyone.

Posted by: neil wilson on February 15, 2008 at 1:13 PM | PERMALINK

So, Kevin, you recommend panic first then reflection? Isn't that precisely why this administration uses the "fear" ploy?

Posted by: lugbolt on February 15, 2008 at 1:14 PM | PERMALINK

"As I've mentioned before, in a genuine national emergency like this I don't have a problem with the president assuming extraordinary powers for a short period." -- Kevin Drum

They began before 9/11 and if no cases go to court because of the 'immunity', then no details will come out about the culpability of Bush & Co.

In a 'genuine emergency' many things are allowed. But, just because Dubya says 'emergency' doesn't mean it's so.

I suspect the fact they were spying from January 2001 on indicates Rice did heed Clarke's warnings and followed a policy from the Clinton administration. That alone had to irk Bush. Then to find that even after violating his personal rule that he still got stuck with the worst attack on America... That has to hurt. Poor George he was born with a silver turd in his mouth and thinks he hit a home run.

Posted by: MarkH on February 15, 2008 at 1:14 PM | PERMALINK

Kevin

Consider two of the points you made

Point 1:
As I've mentioned before, in a genuine national emergency like this I don't have a problem with the president assuming extraordinary powers for a short period. If, right after 9/11, George Bush asked telecom companies to open up their data streams to the NSA for a few weeks or months on an emergency basis until legislation could be passed formalizing new rules for data collection, I'd expect them to go ahead and comply.

Point 2:
And so the program continued. And the telecom companies were stuck. They couldn't go public, obviously.

Doesn't point 2 basically demonstrate the problem with point 1. If you let the president force you into doing someting illegal for a "short time". You can't turn around and go public if he changes the terms.


Doesn't your second

Posted by: Steve W on February 15, 2008 at 1:18 PM | PERMALINK

Kevin says: "And so the program continued. And the telecom companies were stuck. They couldn't go public, obviously. And there was never any appropriate time to suddenly pipe up and stop cooperating."
But Quest DIDN'T go along, thereby showing that a) the telecom companies did NOT have to get stuck in the first place; and b) in the second place, they didn't need to REMAIN stuck.

Posted by: jim on February 15, 2008 at 1:20 PM | PERMALINK

Pale Rider-

It's remarkable how effective a steady propaganda campaign can be, isn't it? Kevin has been following this as closely as any citizen, and yet still comes away with an inaccurate recollection of what happened--all in ways that serve the administration's distortion of events.

Posted by: jayackroyd on February 15, 2008 at 1:22 PM | PERMALINK

Even if they give immunity to the telecoms for actions after 9/11, and I am biased against it, why can't they add a rider that such an immunity does not in any way immunize any government official against being held accountable for authorization of illegal wiretapping?

Posted by: gregor on February 15, 2008 at 1:22 PM | PERMALINK

To continue jim's thought: the telecom companies not only weren't stuck, but they pulled the plug on legal, FISA-approved wiretaps over a billing dispute. Some patriots they are. They most certainly do stop cooperating when they aren't promptly paid.

Posted by: Joe Buck on February 15, 2008 at 1:24 PM | PERMALINK

So we are a nation of laws, but only in fair weather. All it takes is two dozen guys with boxcutters making mischief, or someone with access to dangerous substances with a loose screw, and our laws go out the window.

Surely the Framers did not anticipate a continuous smooth ride for the country -- they knew that we would have enemies, and dangerous people among us. They would have provided for suspending the laws if they had thought that it might be necessary at times.

And how can we now accuse other countries of arbitrary authority if they have adversaries plotting against their governments?

Posted by: JS on February 15, 2008 at 1:24 PM | PERMALINK

Is "authorized after 9/11" the same thing as "started after 9/11"?

Posted by: sj on February 15, 2008 at 1:29 PM | PERMALINK

Do not cut the telecom execs any slack at all. They are bound to protect the financial interests of their companies and they failed miserably. The judgments in these cases could me massive if the program is what I think it is: data mining of all calls, emails, text messages, IM's, etc. going through their switches. There were legal avenues for the Bush administration and the telecoms to take and they didn't. People should be fired at these companies.

Posted by: Th on February 15, 2008 at 1:30 PM | PERMALINK

Kevin, you are wrong on so many levels here, it is hard to know where to begin:

- First, 19 suicidal fanatics crashing hijacked airplanes into buildings does not represent an existential threat to the United States of America. A low-tech attack like that does not warrant scrapping the Bill of Rights. You also mentioned the anthrax attacks. The government knew almost from Day One that those were not carried out by al-Qaeda. The finely milled nature of the anthrax spores indicated access to a sophisticated laboratory that we knew al-Qaeda could not have.
- Second, as a number of people upthread have mentioned, this call record collection began before 9-11, meaning there was no reason whatsoever to countenance this request from the government and some telecom's didn't (Qwest).
- Third, as Rep. Sylvestre Reyes pointed out yesterday in a letter to Bush, "..it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago."

I could go on, but you get my drift. Respectfully, and I do respect your opinions, when you take a judgmental position on a controversial topic like this, expect to get your head handed to you.

Posted by: The Conservative Deflator on February 15, 2008 at 1:33 PM | PERMALINK

Anybody heard of Gull island Alaska.Check it out It is the real reason we are in Iraq.

Posted by: john john on February 15, 2008 at 1:36 PM | PERMALINK

What happened to Steve W's post? Was it "disappeared?" Steve W, if you can get this message, please post with some identifying information we can verify with your parents so that we know you are okay and one of Drum's minions hasn't taken you out. /makes finger slashing across throad gesture.

Posted by: jerry on February 15, 2008 at 1:43 PM | PERMALINK

Not hellbent?

Posted by: Swan on February 15, 2008 at 1:46 PM | PERMALINK

This whole post is really screwed-up (and I usually agree with you, Kevin), but this is where it really goes off the rails for me:

"it doesn't seem right that the least culpable party is the one getting taken to court, while the most culpable parties — the president, the DOJ, and both Democrats and Republicans in Congress — get off scot free."

So the argument is basically: the executive, the legislature, and the telecommunications industries all conspired to break the law; the executive and the legislature are getting away with it; therefore the telecoms should get away with it too.

This is really unspeakably degenerate logic. In what universe do we let guilty individuals go free because their co-conspirators got away with the crime?

Posted by: bob on February 15, 2008 at 1:52 PM | PERMALINK

so you're willing to get a little bit pregnant to ensure your safety ???

you realize that this places you in a category of people who deserve neither security or liberty, right ???

as long as you realize what you're signing up for, go ahead and be an idiot

nullify the declaration of independence and the constitution cuz those scary terrorists make you afraid

that kinda means that the terrorists won, but don't worry about that

put your head up your ass and feel safe all you want

Posted by: free patriot on February 15, 2008 at 1:54 PM | PERMALINK

Re: the Senate provisions applying to only post 9/11 conduct.

That is not how to read the language. Note that the Senate bill requires the dismissal of a "covered civil action" that was "in connection with" an activity authorized after 9/11. The EFF and other lawsuits are "covered civil actions" because they address conduct occurring after 9/11, an in some cases BEFORE. However, the operation of the Senate bill's language (and federal rules of civil procedure) would require throwing out the ENTIRE lawsuits, including those with charges alleging conduct pre-9/11.

I'm not sure that EFF and other plaintiffs can pre-empt this by dismissing their own post 9/11 conduct, since the Government would still be able to allege such conduct was an activity that became "connected to" the post 9/11 activities. Hell, the Government can allege this connection by claiming the spying was done under the same program! Moreover, were EFF and other plaintiffs to attempt to dismiss the post 9/11 conduct charges, such dismissals would be WITH PREJUDICE. That would throw out the possibility of judicial review of the constitutionality of an immunity law, even if it were to effectively excuse only the conduct that Kevin is attempting to defend here.

Posted by: Mimir on February 15, 2008 at 1:56 PM | PERMALINK

There already was a system in place for surveillance in the wake of 9/11. It is called the FISA court. This notion that there was a crisis and no system in place for surveillance is entirely bogus.

Posted by: Orson on February 15, 2008 at 1:58 PM | PERMALINK

THEY WERE SPYING ON US BEFORE 9/11/01!!!

For Christ's sake! Get hellbent already!

Posted by: Blue Girl, Red State on February 15, 2008 at 1:59 PM | PERMALINK

My comment at 1:46 PM was a joke poking fun at Kevin's critics, just to be totally clear.

Posted by: Swan on February 15, 2008 at 2:05 PM | PERMALINK

the price of liberty is eternal vigilance

that means 24/7 365

no days off

no free passes

Posted by: free patriot on February 15, 2008 at 2:05 PM | PERMALINK

I see nothing that justifies a blanket monitoring of all Americans, such as is performed by the type of equipment (Narus)installed by NSA in San Francisco.

Posted by: Luther on February 15, 2008 at 2:11 PM | PERMALINK

Kevin,

it is an incredibly stupid argument to say that it's ok for the president to assume powers not given to him "for a short time" in an emergency situation.
Did you not learn anything from history?

Anyone president gaining a power not had before, will not ever give up that power again without being forced to do so. Why would he, if he got away with usurping it in the first place? After all, he might need it again in another emergency, right?

The fact is that the situation that someone takes more power than what is due him "for a short time"
simply never occurs.

Broadening of executive power is permanent until there is a big push-back. None is ever given back voluntarily. It's just human nature.

Posted by: Martin on February 15, 2008 at 2:11 PM | PERMALINK


If the telco amnesty applies only to post-9/11 activities, could statutes of limitation have something to do with it? It's hard to believe sometimes, but 9/11 was over six years ago.

I still say that the "chatter" about which Tenet had his "hair on fire" in the summer of 2001 might well have come partly from warrantless domestic surveillance. If so, Dick and Dubya would not only be desperate to cover up pre-9/11 lawbreaking, but to cover up the fact that the lawbreaking did not work.

The weirdest thing about this whole debate is the vagueness of it. What the hell IS this "surveillance program" we're all talking about? Massive collection of torrents of data in REAL TIME? I just don't believe it. Even if you could capture every single byte of every single communication everywhere in the world, how do you "prevent terrorist attacks" with it? Only by analyzing your stored haystack of data and identifying those straws that look kinda like needles so you can focus on them. But if you can articulate TO YOURSELF why you think that piece of straw over there might have a needle in it, you can articulate your reasons to a judge. Depending on the standard ("probable cause", "reason to believe", etc.) you will have grounds for a warrant long before you ever have grounds for an arrest. If you're just fishing, if you're analyzing particular straws at random for reasons you can't articulate, how the hell do you expect to "catch terrorists" except by sheer luck? At some reasonable standard of justification, a warrant certifies that you're not totally wasting your time. Unless, of course, you're sifting through your haystack for needles that have nothing to do with "terrorism".

-- TP

Posted by: Tony P. on February 15, 2008 at 2:12 PM | PERMALINK

My comment at 1:46 PM was a joke poking fun at Kevin's critics, just to be totally clear.

Way to go, dumbass. The mere mention of your name in a public forum is now an indication of just how fucking stupid you really are.

Posted by: Pale Rider on February 15, 2008 at 2:12 PM | PERMALINK
.... I don't have a problem with the president assuming extraordinary powers for a short period.....
George W. Bush has been assuming extraordinary powers ever since elected and this is just a small part of it. It's a pity that some dismiss the danger of allowing anyone that power when legal means exist. Posted by: Mike on February 15, 2008 at 2:12 PM | PERMALINK

Kevin, I always like your stuff, and I see your argument here, but I do wish you were just a little bit more hellbent on this one.

The dirty little secret that we, as a nation, need to face up to and come clean about is this:

We, as a nation, overreacted to 9/11.

Yeah, I know how hard that is to say within the hearing of friends and relatives of those who died that day, but we need to admit to ourselves that we panicked, and we let our leaders panic, so much so that when they hinted that -- because we are now facing "a special kind of enemy" -- we might just have to ignore the Constitution for awhile, temporarily shelving the document that defines us and what we allow ourselves to do, we let our guard down and said nothing. We should have understood that having the courage to die for our country means not just fighting for our country, but fighting to preserve the kind of country our country is.

And the kind of country our country is means, among other things, not arresting people and hiding them away somewhere without having to prove to them or anyone else that there's a good reason for it; not torturing people (or looking the other way when they're sent to other countries that will do that job for us); and not allowing our government to spy on its citizens without getting specific permission to do so from someone that we, the people, trust will have our best interests in mind.

I imagine the reason the White House is keen to give retroactive immunity to the Telcos who cooperated with them is because all these civil lawsuits would make public whats inside White House secret files -- which may be a classified-information issue, but may also be a matter of digging up other non-classified, but still embarrassing, information they dont want us to see.

But that aside, I personally see the retroactive-immunity issue as crucially important in itself: Just as it is unconstitutional to charge someone with a crime ex post facto, I think it should be just as harmful to grant folks ex post facto immunity for breaking laws they knew they were breaking, especially if those offenses involve abetting the government in abridging the constitutional rights of citizens.

The fact that the companies were conspiring with the government against Americans even before the 9/11 "emergency" just underscores the danger of putting the Constitution on hold, even for a minute. The overreaction to 9/11 needs to stop somewhere, and at some time, and it might as well be here, and now.

So the next time a 9/11 comes along, please, I implore you, for sake of the nation, try to be just a tad more hellbent on defending the Constitution.

Otherwise, keep up the good work!

Posted by: Rick on February 15, 2008 at 2:22 PM | PERMALINK

If all Bush really wants is to protect the Telcos, why doesn't he just pardon them?

Methinks he wants to create a precedence of excusing illegal corporate behavior after the fact. It also blocks any Telco from testifying about who in the administration ordered this illegal activity and obscures the timespan of the illegal wiretaps.

Also, was any information from these illegal wiretaps used in cases outside of terrorism - drug crimes maybe? Would you trust Bush's minions to not misuse such information?

I think you're wrong on this one, Kevin.

Posted by: Wapiti on February 15, 2008 at 2:25 PM | PERMALINK

Kevin,
Couldn't agree more on this piece of legislation targeting the wrong parties. But I guess it's easier to look tough against President Bush when you hide behind telephone company immunity in order to defeat his survelliance program. The Democrats better hope this does not backfire politically on them.

Posted by: Dee on February 15, 2008 at 2:29 PM | PERMALINK

A friend of mine was working as a lawyer for a technology company at the time. Two years later he told me that he was asked to sign off on a very similar deal. He wrote a letter to the Board saying that they would be utter fools to proceed based on exactly what is happening now with the telecoms. He then stapled a copy of that letter to a signed resignation letter and gave it to his boss.

They didn't fire him. He thinks but isn't certain that the Board did agree to the terms "offered" by the government.

That tells me there is a lot more of this stuff going on than just the telecoms.

And Kevin doesn't answer the question of whether or not Cheney and/or Rove were using the fruits of these programs for political purposes.

Kevin also doesn't explain why the Administration didn't go to the FISA Court, or to Congress in secret session, and obtain permission for these activities.

Cranky

Posted by: Cranky Observer on February 15, 2008 at 2:31 PM | PERMALINK

Who _did_ carry out the anthrax attacks BTW. Curious that...

Cranky

Posted by: Cranky Observer on February 15, 2008 at 2:33 PM | PERMALINK

And I will ask the same question I asked over at Yglesias' but no one was willing to answer: does the President have the authority to order a private paramilitary contractor to kill a person? Ten people? 100 people? Is the answer different if the people are in a foreign country or in the United States (private paramilitary was hired to work in New Orleans after Katrina)? How about rape? What if the President orders a private paramilitary contractor to commit rape for Top Secret reasons of national security? Pull a "Die Hard" style gold heist? Where does the Unitary Executive's authority to order private organizations to violate laws end?

Cranky

Posted by: Cranky Observer on February 15, 2008 at 2:41 PM | PERMALINK

FISA has always allowed for instantaneous surveillance. What the Cheney administration asked for was instantaneous surveillance with no judicial or congressional oversight. They wanted to keep the FISA court completely out of the loop. I can think of no even remotely credible reason why this would be so, unless they knew that what they were asking for was beyond the pale.

Kevin, do you honestly need need an explanation of why Due Process is important, not just in times of peace and prosperity, but (especially) in times of war and crisis?

Posted by: Joe Bleau on February 15, 2008 at 2:43 PM | PERMALINK

Reading these comments and the Congressional Democrats decision to go to the mat for their trial lawyers donors over national security only confirms that whoever you guys nominate, he or she will not be the next President of the United States. Since the GOP will pound the Dems as weak on both foreign policy and national security. Look for many commercials ala Reagan's 1984 commercial about there being a big bad bear in the woods and who would be the better protector.

I, for one, do not welcome, but am resigned to accepting our new McCain overlord.

Posted by: Chicounsel on February 15, 2008 at 2:52 PM | PERMALINK

Cranky, I'll be happy to answer your questions for you.

Does the President have the authority to order a private paramilitary contractor to kill a person?

No.
Ten people?

No.
100 people?

No.
Is the answer different if the people are in a foreign country or in the United States (private paramilitary was hired to work in New Orleans after Katrina)?

No.

How about rape?

No.
What if the President orders a private paramilitary contractor to commit rape for Top Secret reasons of national security?

No.
Pull a "Die Hard" style gold heist?

No.
Where does the Unitary Executive's authority to order private organizations to violate laws end?

It ends where it exactly where it begins - namely, in the terrified imaginations of the authoritarians who long for big virile daddy types to protect them from the scary brown people who are coming to kill them.

Posted by: Joe Bleau on February 15, 2008 at 2:56 PM | PERMALINK

> Joe Bleau at 2:56 PM
> Cranky, I'll be happy to answer your
> questions for you.

>> Does the President have the authority to
>> order a private paramilitary contractor
>> to kill a person?

> No.

Joe,
That is my personal belief as well, but unfortunately under the facts on the ground / created reality that Kevin is endorsing here the President (and presumably the extra-Constitutional OVP) _does_ have that authority.

Cranky

Posted by: Cranky Observer on February 15, 2008 at 3:08 PM | PERMALINK

There should not be immunity for the telecos. Even if someone acts in an emergency you take the case to a judge, learn the facts and then dismiss the case if the person acted in a reasonable fashion. Granting immunity to the telecos grants immunity to the members of the Bush administration.

Suppose that Bush et al have been spying on the Democrats for the last six years. How would we know? The FISA court doesn't know about it.

Even when the British invaded America and burned the White House we didn't tear up the Bill of Rights.

You say there were all sorts of rumors running around about possible further AQ attacks. Certainly these were coming from Cheney et al. There was probably not any credible information about this.

Remember that the anthrax attacks took place shortly after 9/11. Two Democratic senators were sent anthrax letters, Tom Daschle and Patrick Leahy. Both were key in holding up or moving ahead with the ironically named Patriot Act. Coincidence?


Posted by: JohnK on February 15, 2008 at 3:17 PM | PERMALINK

jim p,

Get real. The entire purpose of unwarranted spying is to have info to hurt political enemies, steal insider information, come up with blackmail material, and such other criminal applications.

That is not true! Unwarranted spying is also used to get to the Superbowl.

Posted by: Tripp on February 15, 2008 at 3:25 PM | PERMALINK

Kevin, even tho telco immunity may not go pre-9/11, the telcos will find a way to tie pre-9/11 spying to post-9/11, if nothing else through getting the govt to file an amicus brief under the state secrets doctrine.

The pre-9/11 spying also wouldn't have been done without some tacit or non-tacit nod from BushCo. Doesn't this sound Nixonian to you?

Related to that, dittos to everybody else pointing out Shortstop's totally cogent points on a "thread" of discovery from keeping telcos in the dock.

Kevin, this was actually worse than your original "not hellbent" post. You are deservedly getting your hat handed to you again.

Posted by: SocraticGadfly on February 15, 2008 at 3:26 PM | PERMALINK

Chicounsel,

Chico, I have alway wondered but never asked - what is an "unsel?"

Thanks!

Posted by: Tripp on February 15, 2008 at 3:30 PM | PERMALINK

The history of our fairly recent post-9/11 experience shows that the country and its leadership got pretty damn nutty, and we'll be paying the consequence for generations.

I think we more need control in times like that, not less. The last thing we need is a government with unfettered access into the private lives of its citizens.

I can't believe we need to be reminded of that in 2008 (and after seven years of Bush).

Posted by: JJF on February 15, 2008 at 3:51 PM | PERMALINK

I'm with Joe. There's nothing the president (assuming we had one) couldn't do to protect the country that is within legal limits. Oversight just means a paper trail, and why, pray tell, should they be afraid of that, let alone feel weakened by it? Unless...

Posted by: Kenji on February 15, 2008 at 3:55 PM | PERMALINK

With so many comments, it's hard to be sure if this point has been raised, but it doesn't seem to have been. The statute is NOT limited to ACTIVITIES post-9/11, it's limited to activites AUTHORIZED post-9/11 (sorry about the caps, but I can't get italics or other more suitable emphasis). I see nothing that would prevent the telecoms from arguing that pre-9/11 activities were immune because the President authorized them after the fact (and after 9/11):

[A] covered civil action...shall be promptly dismissed, if the Attorney General certifies to the court that (A) the assistance alleged to have been provided by the electronic communication service provider was (i) in connection with an intelligence activity involving communications that was (I) authorized by the President during the period beginning on September 11, 2001 . . .

Posted by: retr2327 on February 15, 2008 at 3:58 PM | PERMALINK

Chico, I have alway wondered but never asked - what is an "unsel?"

Thanks!

Posted by: Tripp on February 15, 2008 at 3:30 PM

It's a combination of where I live, Chi-cago, with what I am, counsel. Hence, Chicounsel.

Started using this at Ultimate Bet and just carried it over to my blogging activities.

Posted by: Chicounsel on February 15, 2008 at 4:09 PM | PERMALINK

Retr2327: Thanks for the VERY relevant point. Getting back to what I was talkinga about on pre-9/11 snooping, telco immunity lets them off the hook for telling WHY they started spying pre-9/11.

In line with this, can we start a post titled, "Kevin's weakest column of the week"? We have a clear winner for this week.

Posted by: SocraticGadfly on February 15, 2008 at 4:12 PM | PERMALINK

Not all Telecoms were in on the evesdropping. IIRC Qwest refused to comply with the feds wishes.

I'm sure it's a coincidence that Nacchio is now serving time, but it does make you wonder. . .

Posted by: jpmist on February 15, 2008 at 4:13 PM | PERMALINK

So a secret court, whose process you don't/can't know, is too high a bar? There is a process where they could bug you mom and get the warrant later. And you would never know it.

A reasonable person might argue that the old FISA is the lowest or absolute minimum that the constitution could be interpreted to allow.

You seem only too happy to trash the constitution, as long as it's 'temporary' or somebody tells you there's a threat.

Habeas corpus suspension was not even a forgone conclusion during the civil war, let alone something far less dangerous to the country.

Damn.

Posted by: what? on February 15, 2008 at 4:23 PM | PERMALINK

"Our intelligence services were essentially running both deaf and blind."

Yes. That's why Bush had a memo entitled "Bin Laden Determined to strike in US."


Posted by: HeavyJ on February 15, 2008 at 4:37 PM | PERMALINK

Telecoms, the Government= the same thing, no? Don't we have corporate governance in this country?

Didn't our founding fathers, wishing to avoid the extremes of monarchy and democracy, settle on oligarchy?

There you have it: rule of the rich = government + telecoms partnership.

So, if there is a law that says the telecoms cannot give the government all they have on communications worldwide and the government asks for it, what will the telecoms do? Why, give what they have to the government and screw the law.

ABSCAM Congressman Ozzie Myers famously remarked, “Money talks, bullshit walks.”; it ought to replace “E pluribus unum” on our currency.

Posted by: Dr WU-the last of the big time thinkers on February 15, 2008 at 4:56 PM | PERMALINK

Sorry to pile on Kevin, but you are simply wrong.

First, an unaccountable secret court provided a mechanism for getting wiretaps on anyone and even allowed the rubber stamp to be applied after the wiretap had already begun.

Second, the problem was't one of too little information. The problem was that no one connected the dots. Adding more dots, most of which are worthless, does not fix the inability to process the information.

Third, there is no evidence that the Administration has ever argued in good faith. Remember, this is the same bunch that gave us a host of fake "terror alerts" merely as a tool to manipulate the election process.

Fourth, the precedent set by granting immunity to those who broke the law under pressure from the government is appalling. If the government tells you to break the law it is your responsibility to say no. They have no legal recourse against you. If they retaliate via other means then life is hard, but there is no valid excuse for breaking the law (we aren't talking about civil disobediance, this is uncivil obediance).

The correct action to take here is to impeach Bush for his corrupt actions to induce lawbreaking on the part of the Telecom industry.

Posted by: heavy on February 15, 2008 at 5:03 PM | PERMALINK

Kevin's ass has gotta be beet red at this point, given the beating he's taking here. That's why it's always makes sense to think before you open your mouth.

Posted by: coffeequeen on February 15, 2008 at 5:15 PM | PERMALINK

> Kevin's ass has gotta be beet red at
> this point, given the beating he's taking here.

Kevin is an ex-dotcom'er who sits safe and snug in the wealthy Republican stronghold of Orange County. He could easily go to ground, spend his days shopping and visiting wineries, and never be troubled by anything that Cheney and Addington do. Well, not really since he started his blog, but that is the source of his "maybe this, maybe that; I'm not really discomfitted by this-or-that unconstitutional action" attitude: it really doesn't affect him or the people he spends most of his time with. Or it won't until the oil runs out anyway.

Cranky

Posted by: Cranky Observer on February 15, 2008 at 5:27 PM | PERMALINK

Does it need to be pointed out yet again?

Apparently so.

Bush and the telecoms were engaged in these actionable activities, by their own admission, prior to Sept. 11, 2001.
 

Posted by: max on February 15, 2008 at 5:47 PM | PERMALINK

> Bush and the telecoms were engaged in
> these actionable activities, by their
> own admission, prior to Sept. 11, 2001.

I seem to remember that at one time there was hard evidence that John Bolton was using NSA intercepts for partisan political purposes. Was that ever confirmed?

Cranky

Posted by: Cranky Observer on February 15, 2008 at 5:58 PM | PERMALINK

They were spying on everyone because they could, and terror was just an excuse. As stated before, Big Brother erupted almost as soon as Bush's imperial presidency began. They were searching for other things. My guess is, that since everything is political to Bush and Rove, this thing was too. They were looking for generalized knowledge of how things were playing across the information spectrum; and also specifically targeting democratic leaders and their new enemies list. They are desperate to get immunity, because they have wildly deviated from the law and Constitution. Just think what will happen when the extent of their treachery leaks out. They are hoping it won't break in time for them to see the insides of jails.

Posted by: Sparko on February 15, 2008 at 6:13 PM | PERMALINK

"...and providing them with retroactive immunity at this point sets a terrible precedent and creates all sorts of perverse incentives to break the law in the future."

I'll agree, Kevin: but unfortunately, those same "incentives" apply more so to the Government - especially given the Bush regime's near-monarchial view of untrammeled Executive power - than to "cooperative" corporations. But since Bush, Cheney & Co., really (IMO) only care about anything up until Jan. 21, 2009; it's unlikely much (if anything) will (or can) be done about it till these criminals have left office.

Posted by: Jay C on February 15, 2008 at 6:33 PM | PERMALINK

Chico, I have alway wondered but never asked - what is an "unsel?"

Not quite sure, but it seems to be something that lives in fear and has a need to be smothered in strong protective arms that actually don't protect.

"Live in fear on the ground or die" Not quite as snappy as the New Hampshire motto...

Posted by: snicker-snack on February 15, 2008 at 6:42 PM | PERMALINK

Just like to go on record as stating that your position is pathetic, contemptible, and ignorant. There is really little difference between you and Boy George. Facsism is Ok in your book, it just has some hazy expiration date deep in your gut. So much for the rule of law. Being kind, I think ignorance is the most operative word in your case. You did not go to law school (I did, but have not practiced in a long time) and, I think, have a generalized contempt for law and lawyers. You really don't comprehend the paramount importance of governance by law and not by men. I'm sure you would have the same visceral feeling of disgust that I feel at this position if I, in my liberal arts stumbling way, stated some scientific absurdity that all Cal Techies are well versed in.

Posted by: Marlowe on February 15, 2008 at 7:59 PM | PERMALINK

Actually, the Specter-Whitehouse substitution wouldn't have worked, because the government has all sorts of immunities that make it difficult to sue.

So it's the telecom companies or nothing, if you ever want to find out what the government did after 9/11.

Posted by: Dilan Esper on February 15, 2008 at 8:12 PM | PERMALINK

Someone in the Federal government authorized the illegal surveillance and thus broke the law. "Amnesty" will prevent the citizens of this country from ever finding out who that "someone" is. Amnesty will also make it just that much easier for it to happen again. And again. And again. Until illegal wiretapping becomes the norm and we might as well wrap the Constitution in tissue paper and store it in the attic for all the protection it will provide us.

Posted by: Doug on February 15, 2008 at 8:15 PM | PERMALINK

this had absolutely nothing to do with 9/11 or Al Qaeda--they absolutely didn't care about Al Qaeda or terrorism even after being warned before 9/11 by both Clinton and their own PDBs. Stop perpetuating their lies.

They were implementing this before 9/11 and keeping it secret--they knew it was illegal and the telcos knew it too.

Posted by: amberglow on February 15, 2008 at 8:24 PM | PERMALINK

Listen, Kevin. It's not a matter of who takes the fall. It's a matter of who gets on the stand and rats on the Bush administration. And the Bushies sure as shit aren't going to do it. Bush will order them not to appear in court.

I want the telcos to sing. Don't care if they pay.

Posted by: scarshapedstar on February 15, 2008 at 9:47 PM | PERMALINK

I seem to remember that at one time there was hard evidence that John Bolton was using NSA intercepts for partisan political purposes. Was that ever confirmed?

Yes. And it's the main reason why he was NOT confirmed.

Can't anyone put two and two together?--in the time period between 2001 and 2005, the Bush administration seemed invincible. They knew more than everyone else. They anticipated moves and blocked every attempt to hold them accountable. They knew exactly what Kerry was doing--right down to launching the Swift Boat attacks when he was on vacation in August 2004. They knew how to get Daschle. They knew how to frame every issue so that the Democrats would look bad. Every single political initiative from Karl Rove looked like a masterstroke of strategy, right down to the responses to Democrats and right down to how to cripple their opponents.

Think that was luck? Of course not.

All it took was Katrina, and that exposed the inner workings of their machine. They couldn't get wiretaps of the inner workings of a goddamned hurricane, and that's what sunk them.

Posted by: Pale Rider on February 15, 2008 at 9:57 PM | PERMALINK

Shorter Kevin Drum: I support the Fourth Amendment, but I'm not *hellbent* on having it enforced.

Posted by: Chris on February 15, 2008 at 10:41 PM | PERMALINK

Bush and Cheney started their illegal wiretapping program practically the minute they took the oath of office. 9/11 changed nothing for the telecoms. They should not be rewarded for selling out their customers' privacy.

Posted by: Pocket Rocket on February 15, 2008 at 11:22 PM | PERMALINK

I quit reading in the middle of the second paragraph when I realized this whole post was plainly shit.

...Because . . . Bush went to the telecoms about 6 months BEFORE 9/11. There was no national emergency when all this shit was started.

C'mon, Kevin. You are better & smarter than this.

Posted by: bob in fla on February 15, 2008 at 11:28 PM | PERMALINK

Kevin, the doomsday bomb scenario?

I thought you were above that.

The posters have whipped you silly and you deserve 10x worse.

There is no doubt left why you supported the invasion of Iraq.

The people who support torture, the people who support the invasion, the people who support government spying are not Americans. They are fascists.

Seriously Kevin, you need to look in the mirror and know what it means to be an American. We all learned about the bill of rights in school, we all know that document is what makes America different, it is what makes America a great place to live, it makes America a country worth dying for. The fascist haven that you and the wingnuts crave is not America, it is another country, one the founding fathers, the men we grew up idolizing, would cringe at.

The simple truth, which you refuse to recognize, is that it is our responsibility as citizens to hold our leaders responsible for protecting us, within the limits of our constitution. If the current government is incapable of executing, THEY NEED TO BE REMOVED.

Elected officials are disposable, the Constitution is not.

GET YOUR PRIORITIES STRAIGHT.

Posted by: says you on February 15, 2008 at 11:57 PM | PERMALINK

One interesting thing about granting retroactive immunity to the telecom companies, for their spying on U.S. citizens without warrants, would be that they wouldn't have any reason anymore not to testify under oath before Congress.

Facing no legal jeopardy nor self-incrimination, they'd have to testify and Congress could ask for all the documents related to what they've been doing on behalf of the neo-con RIPublican criminals in the Bush admnistration. Grand juries could be convened (after Bush and Cheney leave, for instance) and the telecom companies would have to answer questions involving the illegal surveillance they did for Bush and Cheney (and Ashcroft and Gonzales) and they'd be unable to refuse because of the immunity having been granted them.

And if this occurs with a Democratic Party president in the White House, who will not roll out "state secrets" in defense of the compliant and complicit telecom companies, we might finally be able to lay to rest some of the ghastly ghosts of the worst administration in American history.

Personally, I'm against granting the telecom companies retroactive immunity so our courts can get to the bottom of this mess right now, but there just might be an upside to Congress giving them this get-out-of-jail-free-card, but only if at a later date (under a Democratic White House and Democratic Congress) all the criminal activities of the Bush administration finally are exposed...you know, to make sure American History books of the future are accurate.

Bush and Cheney may be able to run, and may try to hide, but the historians and the Truth will eventually catch up with them.

Posted by: The Oracle on February 16, 2008 at 6:52 AM | PERMALINK

Chicounsel: Since the GOP will pound the Dems as weak on both foreign policy and national security.

so...

after 2-invasions..600-billion spent...30000 killed and wounded USA troops..

“Al Qaeda is gaining in strength from its refuge in Pakistan and is steadily improving its ability to recruit, train and position operatives capable of carrying out attacks inside the United States.”

- Mike McConnell, director of national intelligence 2/7/08

“Al Qaeda is gaining in strength.."

heckofjob...

Posted by: mr. irony on February 16, 2008 at 8:56 AM | PERMALINK

Two points:

1. Bush/Cheney started illegal spying on Americans without wiretaps shortly after January 20, 2001.

2. The lawsuits are not about damages; rather they are about exposing to the light of day, in court, the illegal activities of Bush/Cheney.

Posted by: bushworstpresidentever on February 16, 2008 at 9:34 AM | PERMALINK

Kevin, I agree with you most of the time, but you really seem clueless on this issue. As several people have stated this started well before 911. It goes way back. Look up Carnivore. I could go on, but I have a hang over and this shit hurts my head.

Posted by: spyder on February 16, 2008 at 11:54 AM | PERMALINK

First, let's set the stage right after 9/11. Al-Qaeda had hijacked four airplanes and driven them into three buildings, killing over 3,000 people. We didn't know if more attacks were imminent. A week later people started dying from letters contaminated with anthrax and we had no idea who was behind them or if more was to come. There were seemingly credible reports at the time that Osama bin Laden might be close to acquiring a nuclear bomb. Our intelligence services were essentially running both deaf and blind.

Okay, there you go. I can safely remove my link to Political Animal. You don't know shit from shinola, and never will.

Posted by: Mooser on February 16, 2008 at 2:32 PM | PERMALINK

But that aside, I personally see the retroactive-immunity issue as crucially important in itself: Just as it is unconstitutional to charge someone with a crime ex post facto, I think it should be just as harmful to grant folks ex post facto immunity for breaking laws they knew they were breaking, especially if those offenses involve abetting the government in abridging the constitutional rights of citizens.

No, the unconstitutionality of ex post facto laws has to do with due process. If you make conduct criminal after the fact, you've deprived the accused of due process (which includes notice that some act or omission is a crime). But, if you grant immunity after the fact, there's no due process violation and thus no unconstitutionality. Such laws may be outrageous to the public, but the public isn't the party accused of anything.

That said, the grant of immunity would without a doubt be outrageous.

Posted by: LynnDee on February 16, 2008 at 3:01 PM | PERMALINK

There is one other reason why it's important not to give retroactive immunity to the companies, even if they are the less "culpable parties" -- and that is avoidance of a legal precedent that can cause a lot of harm in the future.

It is a standard clause in most business confidentiality and non-disclosure agreements that the information can be disclosed only if the party holding it is compelled by "law" or by an order from a "court of competent jurisdiction". There is never, to my knowledge, reference to an order from the executive branch of government, even under extraordinary circumstances.

This retroactive immunity would water down the obligations of holders of confidential information, if they can claim that there is precedent for disclosing such information to government agents even without a court order. The result of this would be to give the Executive branch powers that only a court should have -- which is exactly Cheney's intention, of course.

So it's not only who is "most culpable" that counts. It's a matter of avoiding a dangerous precedent that can be used in the future to alter the balance of power among the branches of the government. Also, as others have pointed out, this immunity would make it more difficult to pursue any action against the "most culpable" parties at any point in the future.

Posted by: JS on February 16, 2008 at 3:23 PM | PERMALINK

The Oracle: Bush will try to extend executive privilege, or the state secrets argument, take your pick, to telecoms testifying before Congress if they get lawsuit immunity. The Bolton/NSA angle shows exactly how that will play out.

Posted by: SocraticGadfly on February 16, 2008 at 7:12 PM | PERMALINK

I don't know what you're thinking, Kevin. Your position makes absolutely no sense. You are not holding on to the GOP "terrorist will win" approach to any negotiations and you are not so stupid as to believe it actually makes a difference if retroactive immunity is passed.

Here's the problem--the surveylance info had been sought long before 9/11. That means 1) they don't need the info; 2) they are no capable of using the info they have; 3) there is absolutely no justification for arguing that the data has helped to prevent anything other than some idiot bureaucrat's heartburn.

No retroactive immunity, period. In fact, no retroactive laws--ever. This is the European stance--if you pass a retroactive law, it is automatically invalid. Why? Because no party had notice. No notice--no due process. Got that, Drum? No. Due. Process!

Posted by: buck on February 16, 2008 at 7:48 PM | PERMALINK

LynnDee: "No, the unconstitutionality of ex post facto laws has to do with due process."

Yeah, maybe it's litigated that way nowadays -- not being a lawyer, I don't know.

But in effect, no; since Ex Post Facto is found in the body of the Constitution, not the Bill of Rights -- where Due Process is found and which was not added until several years later -- the framers in 1787 were obviously not yet concerned with all those human rights niceties.

Whatever. This kind of arcana is the main reason why I specifically didn't claim this "retroactive immunity" stuff to be "unconstitutional" as such, just that it would, in your own words -- and apt ones at that! -- "without a doubt be outrageous."

So basically, you and I agree on this! (Hey, I think I'll go pour myself a black russian!)

Kevin, are you still paying attention to us here? Or have you moved on to something less critical to the survival of the Republic?

Please don't take all this criticism personally! Just consider it the continuing education of an already educated man. And who among us doesn't need that sort of thing now and again?


Posted by: Rick on February 16, 2008 at 7:52 PM | PERMALINK

But in effect, no; since Ex Post Facto is found in the body of the Constitution, not the Bill of Rights -- where Due Process is found and which was not added until several years later -- the framers in 1787 were obviously not yet concerned with all those human rights niceties.

Good point, at least as far as where the various provisions are located. But obviously the notion of due process didn't spring into existence between the drafting of the Constitution and the Bill of Rights, and I think it's clear that the reason ex post facto laws and bills of attainder expressly prohibited in the Constitution has to do with due process.

Posted by: LynnDee on February 16, 2008 at 8:05 PM | PERMALINK

I'm with Stefan. The only part of the government that seized up was the President who was flying around on a plane and leaving things to Cheney.

The actions of the Administration, fomenting near panic after 9/11, helped create the illusion of a crisis.

Posted by: mark on February 16, 2008 at 8:10 PM | PERMALINK

LynnDee: "I think it's clear that the reason ex post facto laws and bills of attainder expressly prohibited in the Constitution has to do with due process."

Okay, I think this is where we'll differ.

The Constitution was originally meant to be nothing more than a set of by-laws. Those Bill of Attainder and Ex Post Facto provisions were included, it seems pretty obvious, because the founders didn't want the government going berserk. Not that it might not also have reflected a concern that citizens might otherwise suffer abuse, but mostly it was, I think, just a way to maintain orderly and predictable governance.

Yes, there was debate among the founders as to whether they should include a bill of rights of some sort -- after all, many of the states already had them in their constitutions, and many of these concerns traced back to the Magna Carta, and all that -- but it was eventually decided to exclude those particulars, mainly because, if we enumerate rights but leave something out, will people think that means it's not a right, and protected under supreme law of the land?

But then, the Anti-Federalists starting insisting that nobody should ratify this new thing unless it has a Bill of Rights attached, so just to keep everybody on board, the founders said, yeah, yeah, sure, we can do that! And they -- specifically, Madison, bless his heart -- did, including the 5th Amendment, which contained an insistence on following Due Process.

But that -- as the kids sometimes say -- is just so much history! Which I guess is meant to be a put-down of some sort. But not to me.

But whatever. Even if the act of backdating responsibility for someone not obeying the law is not a constitutional issue, it shouldn't be allowed, especially by a statute that this present Supreme Court is unlikely to overturn.


Posted by: Rick on February 16, 2008 at 8:42 PM | PERMALINK

The Constitution was originally meant to be nothing more than a set of by-laws. Those Bill of Attainder and Ex Post Facto provisions were included, it seems pretty obvious, because the founders didn't want the government going berserk.

"Not wanting the government to go berserk." That's as fine a definition of due process as I've ever heard.

Posted by: LynnDee on February 16, 2008 at 9:20 PM | PERMALINK

Even if the act of backdating responsibility for someone not obeying the law is not a constitutional issue, it shouldn't be allowed, especially by a statute that this present Supreme Court is unlikely to overturn.

But backdating responsibility for someone not obeying the law is a constitutional issue. It's granting immunity that's not.

Posted by: LynnDee on February 16, 2008 at 9:25 PM | PERMALINK




 

 

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