Sunday, June 15, 2008

Capitulation on Telecom Immunity

In February, the fear mongering over renewing the Protect America Act with a clause granting retroactive immunity for participants in the illegal NSA wiretapping program was front-and-center, with obfuscation of the facts and promises of the end of days should immunity not be included. Yet, despite these promises of doom if the act expired, Republicans were unwilling to even vote to extend the PAA to allow for further debate, and instead chose to let it lapse. Just the very fact that they let it lapse is a clear indication that even they didn't believe what they were saying.

Four months later, out of view thanks to incessant superficial coverage of the horse race, Congress is again preparing to grant immunity, only this time in the form of a compromise. But, as EFF reports, such a bargain would be a compromise in name only. In practice, it would grant clemency to the phone companies and keep hidden forever the full extent of Bush's spying program by keeping the details out of court.

Under the guise of a compromise, the legislation is designed to ensure that the only issue the courts will review is whether or not the President told the telecoms that their conduct was legal, but not whether the conduct actually was legal.

Essentially, the new bill would ensure that the question of the legality of the program would never be addressed, as it still hinges on the premise that if the Executive branch unilaterally determines something legal, it becomes so. This judiciary element of the branch is of course nowhere in the text of the Constitution, and to allow it to stand without challenge would do irreparable harm to the founding document.

The passing of a bill granting retroactive immunity would be a vindication and validation of the dangerous Unitary Executive Theory, a conception of unbridled Executive privilege which blossomed in the Nixon administration--of which Dick Cheney was a part--and has appeared in full bloom and bearing fruit in the current regime. In practice, the theory basically means that anything the Executive does cannot, by definition, be illegal by virtue of the fact that he does it. In Nixon's words, "if the President does it, it's not illegal."

The danger of that kind of circular logic should be apparent, yet is conspicuously absent from any public debate. It is quite clearly a perversion of the Constitution's establishment of the separation of powers, belief in which requires either illiteracy or a blatant erasure of significant passages from the document.

Central to debate, and essential for its success from the immunity proponents' perspective, is ritual obfuscation of the reality of the FISA statutes and often outright lies to instill fear in the American public, a task which the lazy media is all too happy to assist with.

Glenn Greenwald has been at the fore on the immunity negotiations, and one of the few people to consistently itemize the falsehoods enveloping the debate. The debate--and I use the term loosely--has always been at the root an effort to grant phone companies immunity. But next to nothing of the fear-inspiring words tossed into the fray deal with the topic at all. Instead, false pretenses and promises of imminent doom are thrown out as if the issues can't be addressed in any bill that doesn't grant immunity.

But things such as foreign-to-foreign communications have absolutely nothing to do with whether or not anyone can be held responsible for past actions.

The whole issue of "foreign-to-foreign" communications is a complete red herring. It's irrelevant in considering whether to enact the Rockefeller/Cheney Senate bill or anything close to it. Even the most stalwart civil libertarians in the Congress -- such as Russ Feingold and Chris Dodd -- have been willing from the start to amend FISA to exclude foreign-to-foreign communications from the warrant requirements.

If the President agreed to sign it, Congress could pass a law amending FISA in one day to fix that particular "problem," and then virtually every scary threat Lichtblau's article describes would instantaneously disappear. All of the supposed fears and dangers Lichtblau's article cites are an absolute sideshow because virtually every member of Congress is willing right this minute to pass a law to amend FISA to eliminate the cause of those supposed dangers -- i.e., the requirement that warrants be obtained to eavesdrop on foreign-to-foreign calls. Pointing to the "dangers" from that requirement in order to justify passing the Rockefeller/Cheney bill is exactly the same as pointing to the threat posed by Al Qaeda in order to justify invading Iraq; one has nothing to do with the other.

What this passage illustrates is that the Republicans and Blue Dog Democrats, for all of the hype, are not the least bit worried about the actual dangers stemming from a failure to pass a new FISA bill. As Greenwald states, no member of Congress thinks that the US should not be able to eavesdrop on foreign-to-foreign communications, even if they pass through US networks, and a bill to allow such spying could be passed in a single day. But, of course, that's not really the issue at hand, immunity is. It should blatantly obvious that granting immunity for past transgressions has absolutely nothing to do with the US's ability to track such communications, yet the debate is allowed to proceed as if that is the case. Not that the 24-hour news cycle has any room left for actual discussion of substantive topics. After all, Britney Spears may be moving hospital beds.

Another favorite talking point of immunity proponents is to declare the FISA laws outmoded, as they were fashioned decades ago when communications were not nearly as advanced as they are today. But this is another red herring. The statutes have been revised over the years, and again, no member of Congress would deny the government the ability to spy on foreign agents using methods of communication unavailable in the 70s. Nevertheless, that falsehood is promoted as another reason that immunity must be granted immediately.

Perhaps the most damning example of the obfuscation surrounding the debate is the unwillingness of the Republicans and Blue Dogs to sign extensions of the PAA. If the dangers posed by not doing so were really what they said they were, would they not then be responsible for anything that happens as a result? Republicans are held up as strong on national security, which makes it even more inconceivable that they would allow a state of (what they say) clear and present danger to persist merely to eliminate accountability for AT&T and Verizon. If they dangers are what they claim, then by extension they are willing to put Americans in danger. Why, then, do Republicans still have a monopoly on "strong on national security?"

The Democrats in Congress are more than willing to grant the intelligence community all the tools it needs for espionage. It is the Republicans who are preventing that from happening.

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