Conventional Folly

One of the defining characteristics of our bi-polar politics is the willingness, nay, eagerness, of the dedicated rank-and-file to shed all elements of doubt and reason in favor of throwing themselves in full support of the party structure, no matter how counter-intuitive it may seem on the surface. Republicans who have spent the last decade decrying John McCain as anything but a real conservative are more than happy to shuffle along in zombie-like fashion as the man poses as the reincarnation of George Bush, and Democrats are so desperate in their Quixotic search for a different (any will do, thank you) direction they ignore the glaring signs that Obama is anything but.

Glenn Greenwald personifies this delusional nature, writing about his shock -- shock! -- that the corporate sponsor of the Convention, AT&T, would act like, er, a corporate sponsor.

Last night in Denver, at the Mile High Station -- next to Invesco Stadium, where Barack Obama will address a crowd of 30,000 people on Thursday night -- AT&T threw a lavish, private party for Blue Dog House Democrats, virtually all of whom blindly support whatever legislation the telecom industry demands and who also, specifically, led the way this July in immunizing AT&T and other telecoms from the consequences for their illegal participation in the Bush administration's warrantless spying program.

Greenwald knows, whether he indicates it or not, that this party is but a drop in the bucket, a trifle compared to the billions already showered on all members of Congress in the past year by the telecommunications industry thanking them for their dutiful service to the poor, cash-strapped conglomerates of this great nation.

Greenwald uses the term "Blue Dogs" with derision, but it is plain for all paying attention that the vote to extend immunity for clear violations of the law was as inevitable as it was infuriating, and merely indicative of the state of American democracy. Lefties like to pretend that the Democrats are simple beings, led by only one cause, that of the people. That Democrats alone are immune to the influence of power, prestige, and corporate money showers is delusion bordering on lunacy.

Amazingly, not a single one of the 25-30 people we tried to interview would speak to us about who they were, how they got invited, what the party's purpose was, why they were attending, etc.

Really, Glenn, was it that amazing? Or was it an entirely predictable and natural offshoot of American democracy? There was no democracy to be had within the Convention, and what little there was outside was kindly put in its rightful place.

Individuals arrested at the Democratic National Convention will be processed at an industrial warehouse with chain-link cells topped by razor wire, a facility some have compared to the U.S. prison at Guantanamo Bay.

Groups planning marches, concerts and other events during the Aug. 25-28 convention dub the center "Gitmo on the Platte," for the nearby South Platte River...Video footage of the north Denver warehouse on Denver's KCNC-TV showed coils of razor wire topping chain-link cells. A sign read: "Electric stun devices used here."

This is what passes for democracy in America. Protests require permits, are constrained to preposterous "free speech zones," and performed under the threat of detention in a razor-wire rimmed Gulag. The chances that the participants inside the Pepsi Center would allow the wishes of these insignificant Americans to influence the party platform were about as high as President Bush allowing the whims of dying Iraqi children influence his foreign policy.

Inside the Pepsi Center, emotions ran exceedingly high, undeterred and unfettered by the loonies outside. Speakers were determined to leave no platitude unsaid, no empty phrase (change, anyone?) unuttered, secure in the assumption that their captive audience wouldn't dare call them on specifics or demand that the platform reflect their wishes.

Nowhere is this more evident than in the area of foreign policy. People have been successfully convinced by the Obama team that he represents a stark shift in direction from the past eight years, so much so that they have given up the formality of listening to actual words spoken and actions undertaken. Obama's foreign policy team is chock full of the typical imperial fare, nicely rounded out by last weekend's selection of Joe Biden as running mate, one of the most firmly-ensconced members of the foreign policy establishment, strongest purveyors of unbridled American expansionism, and avid supporters of the War in Iraq.

Anyone actually listening to the speeches of Biden and Obama would have been pummeled by images of continued American militarism under an Obama presidency, including -- but surely not limited to -- expansion of the war in Afghanistan, continued stoking of the flames in Iran, and diligently renewing the Cold War with Russia. If one didn't know better, one would think the Republicans just held their Convention in Denver.

But all this is par for the course. Politicians chant empty mantras like change (every challenger for the last several hundred years has offered a change of direction) without ever being held to such promises. Obama says "change," his supporters jump, and no one thinks to ask what that "change" might entail, or how it might manifest itself. By all outward signs, change will come in the form of continued militarism in a prettier package -- more engaging speeches and more empty gestures to international organizations (before ignoring them). Liberals don't oppose war, they oppose unsuccessful wars. Had the Iraq occupation gone as planned, Biden would still be all for it, as would all Democrats who spent all of five minutes questioning the decision of the "anti-war" candidate to take the "pro-war" figure as his running mate before climbing on board with nary a peep.


Related:

Change Personified, August 25
Renewing Afghanistan, July 21

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FISA and the Death of the Constitution

After months without much movement, the House on Friday approved a new FISA bill that grants the telecoms a free pass for their cooperation in the Bush administration's bid to gut the Constitution, specifically the Fourth Amendment. Presented as a compromise and an exercise in 'bipartisanship' (read: capitulation), the deal as written is anything but.

The bill requires only two stipulations to have civil suits thrown out: a, if the phone company was assisting the government in its surveillance program or, b, if the company received a letter from the government assuring them their action was legal.

The effective result of this language is make the written language of the Constitution second to the whims of the Executive branch in determining legality, clearly a chilling precedent to set. On inauguration day, the President swears to uphold and defend the Constitution, not to rewrite it as he sees fit.

There are a few things about the debate that need to be established, as they have been conspicuously absent from public discourse concerning the issue. First, the debate was never, at any point, about national security. It was always centered on granting immunity. In all public statements in support of the immunity deal, proponents invoked images of an intelligence community hampered by outdated and outmoded laws that left the country in peril. But the evidence that such statements were red herrings and inaccurate was overwhelming.

For instance, foreign-to-foreign communications that pass through US networks were held up as a reason to pass the bill, but no member of Congress would have rejected such a bill, making it clear that it was immunity for the phone companies that was the real target. The Attorney General at one point even fabricated a story about the US not being able to spy on a phone call made from a safe house in Afghanistan (until he changed countries as he squirmed under scrutiny), hoping no one would catch on that such a call would have been fair game even under the original FISA statute.

At every opportunity, the debate over the FISA bill was brought full circle to an accusation that anyone who didn't support immunity was somehow in bed with terrorists. That every member of Congress would have been willing to grant the intelligence community every single tool they needed, sans immunity, is invariably left out. That the argument is allowed to continue without the slightest question raised is infuriating, as one would hope that anyone of functional intelligence would be capable of discerning the glaring logical inconsistencies inherent in the argument.

For an idea of just how restrictive the FISA court has been since its conception, consider that between 1973 and 2007, the court rejected a total of 9 applications while approving 25,360. That's an incredible 0.035 percent failure rate. The court is nothing but a rubber stamp, but apparently that's still too big an obstacle for the Executive branch to uphold the Constitution.

As with the debate over habeas corpus, the proponents of immunity toss around the idea that the US should be able to spy on foreign agents and terrorists while simultaneously attempting to bypass the very apparatus used to establish that point. Again, and it can't be stressed enough, the issue is not whether such individuals should be spied on. The only thing at stake is whether in a Constitutional republic the rule of the founding documents should take precedence over the fleeting whims of a rogue Executive branch. That anyone is considering the latter over the former is intriguing. That the entire legislative branch, presumably a large portion of which are lawyers, defies credulity.

Indeed, upholding the Constitution has somehow become a partisan issue, a curiosity of American political history.

Much has been made since the House vote of the capitulation of the Democrats, but anyone surprised by the action wasn't paying much attention. Liberals like to pretend that the Democrats are free from corporate influence and believe them to be more like the populist campaign image than the same, tired Washington players they are in the space between. If history hasn't dispelled this notion by now, there can be no hope of a revelatory moment anytime soon.


Related:

Sunset (Il)logic, February 24
Capitulation on Telecom Immunity, June 15
John McCain and the Telecoms, June 9

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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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John McCain and the Telecoms

It's been a while since I've addressed the issue of telecom immunity, as not much headway has been made in either direction, aside from the occasional wind-testing proposal tied to the starter's block. The contention, however, is beginning to bubble again, if only slightly, because of John McCain's public wavering on the issue.

Although previously on record as saying the President is not above the law, McCain and his advisers have backtracked in the past week.

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance.

McCain, as with every other about face he's made in the process of this campaign, denies he's changed his stance. But McCain said this to Charlie Savage six months ago:

There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.

It strains credulity to imagine what, if any, Constitutional power would grant the President the power to ignore written law. In saying so, McCain shows an increasing attraction into the orbit of President Bush's flawed legal justification of the NSA program, a justification a wide array of legal experts have declared "fails to offer a plausible legal defense of the NSA domestic spying program." Indeed, it appears an insurmountable task to find a lawyer of any import outside of the current administration who can find any legal backing for the program.

An examination of McCain's advisory team, however, leaves little want of an explanation for the waffling. The list of advisers reads like a telecom dream team, with more than a third of the 66 lobbyists on McCain's team having lobbied for the telecom industry in the past decade, with many, such as chief political adviser Charlie Black, fighting until very recently for ratroactive immunity. Three leading lobbyists for AT&T, Verizon, and Sprint listed in a September Newsweek article are now members of McCain's campaign. EFF continues to list and expand upon numerous other lobbyists involved with the Arizona Senator, eliminating any mystery surrounding the sudden shift in position.

[Note: The 66 lobbyists is a dated number from a March USA today article. As the number is inexact and fluctuates, the numbers above are meant as an anecdotal estimate giving a general perspective, not an exact statistic. At one point, McCainSource had listed as many as 134 lobbyists involved. Again, those numbers shouldn't be taken as precise.]

Whatever you think about John McCain, the only thing that has become exceedingly evident in the process of the campaign is that however principled he has been imagined throughout his career, he has ceased to be. He has changed course on nearly every significant issue except the Iraqi occupation, be it taxes, Roe v. Wade, or telecom immunity. Sure, he still throws in the occasional token environmental reference, but the only thing 'maverick' about John McCain these days is his staunch commitment to a thoroughly-reviled status quo.

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John Boehner: Lawuits for Me, But Not for Thee

In what has to be the clearest case of hypocrisy seen in quite some time, John Boehner has been granted $1 million dollars in an illegal wiretapping case, even as he continues to fight for telecom immunity surrounding the illegal NSA program. Boehner, apparently without irony, justified his case by saying, "no one — including members of Congress — is above the law.” The mind reels.

Surely his statement is correct, but that hasn't prevented him from being on the front lines of preventing other Americans from having their day in court. Illegality clearly is only of importance should it affect him, but for him to extend the same standards to everyone else is too much for him to bear. He made this point clear in an interview with Brit Hume:

HUME: The other issue that has risen in connection with this bill has to do with granting an immunity from legal action, from lawsuits, to companies which, in the immediate aftermath of 9/11, cooperated with very aggressive government surveillance activities undertaken in the fear that another attack might have been right then on the way.

BOEHNER: But after 9/11, our country and our intelligence officials went to telecommunication firms and other third parties and asked them to participate in a program to help secure and bring safety to the American people, and they did.

And because they did voluntarily, I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies.

This answer, of course, does nothing to address the legality of the actions, but merely says that the phone companies 'participated voluntarily.' Given that, one presumes that the company which voluntarily participated in his own case would be granted a similar assessment. One would be wrong. That voluntarily conducting illegal activity somehow alleviates guilt is preposterous.

And, as Boehner said himself, "no one is above the law."

A constant drumbeat of supporters of immunity against organizations like the ACLU and EFF, who are working for very little, is to paint them as money-hungry, unscrupulous lawyers out only to make a quick buck. But, really, the organizations are after punitive damages meant to deter future transgressions.

Boehner's own lawyer during his case:

“Punitive damages are not imposed to give awards to plaintiffs; they are imposed to punish and deter illegal conduct and to exact retribution on behalf of society for the violation of its laws,” Boehner’s attorneys, seeking damages and legal fees, argued in a court brief.

At every turn, Boehner's own case throws a wrench into his argument in favor of telecom immunity. And his sense of logic deflects all attacks with equal regularity.

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Democrats Begin Bipedal Movement

After a closed session on Thursday, the House passed the Democratic proposal for amendments to FISA on Friday, the specifics of which were in Thursday's post. It appears that the Dems have realized the feeble objections of the Republicans were not unassailable and that they could even ignore or defy them at times.

In passing the bill, which will still have a tough time passing the Senate, the Democrats kept retroactive immunity out and put confidentiality protection for the telecoms in. However, this action only stood to prove that when Bush and his minions say 'compromise,' they mean 'do as we say,' as this seemingly reasonable compromise was met with predictable objections from the right.

In presenting these objections, proponents of blanket immunity only illustrate with ever-growing clarity that their arguments are as baseless as they are erratic. Tony Fratto with the current White House version:

Their bill would make it easier for class-action trial lawyers to sue companies whose only offense is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.

Sorry, Tony, better luck next time. They're not charged with being helpful, they're charged with doing so illegally. But congrats on the ability to keep this charade of illogical tripe going with a straight face. And about the use of 'alleged.' If you want to cast doubt that the companies actually aided you, you might want to shy away from throwing everything you have into trying to protect them from prosecution. When I was younger, I used to try this by flinging myself on top of my mattress when my mother went to flip it. And it certainly wasn't because I had any magazines under there.

The 'they-we're-being-patriotic' reasoning is only the latest in the White House's series of arguments. This shifting is reminiscent of the lead-up to the Iraq War (Saddam's a bad man. No wait, he's bad and he has WMDs. Non-starter? What if he was responsible for the WTC? Umm...democracy. That's the ticket!).

Once upon a time, it was 'well, if immunity's off the table, the phone companies won't cooperate.' One has to assume that this was dropped as the main talking point once a pre-law student informed the administration that a company can't refuse to comply with a legally-acquired warrant. This is a point that is somehow missed in most discussions of immunity; a tragic failure to include a little common sense.

Then, it was 'well, even if it was illegal, the Justice Department said they weren't breaking the law.' Unfortunately for Bush, the Constitution and laws don't change based on JD advisement. But the Democrats even threw him a bone on this one, allowing the companies to bring those advisements to trial in their defense. So that talking point's out, too, I guess. What do you do when the opposition includes a provision that makes your rationale a moot point?

Bush and the Republicans have tried their best to stir up fear on the intelligence bill, but the more they speak, the more it becomes clear their arguments lack validity or substance. Every legal argument thrown out is shot down post haste, so they gravitate to the emotional. When that, too, fails to elicit the response they desire, they call secret sessions to stall and pretend to have some secret information we're all missing. And that's only after they decide they even want to stay in the room and talk about it.

Although this bill will die either in the Senate or the President's desk, it does succeed in showing just how ineffective the Republican fear machine has become, and that's a win for everybody.

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Invertebrate Evolution

In a shocking turn of events, House Democrats have indicated that they do indeed have a semblance of a backbone. Granted, when all is said and done, it is unlikely to pass in its current form, but the Dems plan to unveil their version of amendments to the FISA statute on Thursday.

The summary:

FISA Amendments Act

Bill Summary

March 11, 2008

The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed.

Title 1: Surveillance Authorities

· Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.

· Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter).

· Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.

· Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.

· Requires an Inspector General report on the President’s warrantless surveillance program.

· Prohibits “reverse targeting” of Americans.

· Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.

· Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset).

Title 2: Litigation Procedures for Telecommunication Company Liability

· Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program.

· Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses.

Title 3: National Commission on Warrantless Surveillance

· Establishes a bipartisan, National Commission – with subpoena power – to investigate and report to the American people on the Administration’s warrantless surveillance activities, and to recommend procedures and protections for the future.

Most glaringly, they have not included a clause granting retroactive immunity to the telecommunications companies, a clause demanded by the Bush administration and included in the Senate version of the bill passed in February. As I stated in a previous post, immunity is the most contentious issue surrounding the amendments to FISA. I've already laid out my objections to that particular argument so I won't redress them here.

Instead of immunity, the proposal would allow the defendants in civil trials to present classified evidence in their defense to the presiding judge. This would be done in secret and the documents would not be publicly available. Inclusion of the clause comes from the administration's claim of "state secrets" which would have prohibited the phone companies from presenting these confidential documents in court, which would go a long way in establishing that they acted in good faith and are therefore not liable.

As it stands, good faith seems to be what defenders of immunity have gravitated toward, saying that regardless of the legality of their actions, the telecoms were acting in good faith and had assurances from the Justice Department that their cooperation in the Terrorist Surveillance Program was legal and legitimate. The proposal would grant them the opportunity to prove that the Justice Department had steered them as suggested and perhaps limit their vulnerability in civil trials.

Third, the proposed legislation would establish an oversight committee and require and Inspector General to report on the program. Seems good in theory, though we pretty much have evidentiary proof that the Bush administration will obfuscate and obstruct to the full extent of its imagination, so that clause is likely a wash.

In spite of the unlikelihood the legislation is passed as is, the Democrats are at least illustrating a little grit on a significant issue.



A couple of additional thoughts per previous discussion of the misinformation regarding immunity and FISA:

• Julian Sanchez presents a pretty thorough debasing of the main pro-immunity talking points here.



• It should be noted that during the period from 1979 through 2006, the FISA court has rejected all of 5 applications for a warrant while approving 22990. The rate of rejection: .022 percent. That's 1/50 of a percent. It seems that the court itself, if the process is seen through properly, is not, and never has been, a hinderance on surveillance authorities.



• For all their posturing, the Republicans aren't even taking part in this debate short of empty proselytizing and instilling fear in the public. This refusal to take part in the proceedings begs the question: If allowing the PAA to lapse was a tragedy, wouldn't working toward a substitute be a priority? In the US Congress, it's a bit hard to expect the other party to simply accept the other chamber's bill without discussion, and trying to stifle any ounce of debate is reckless.

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Sunset (Il)logic

On Friday, AG Michael Mukasey and DNI Mike McConnell sent a letter to the House Intelligence Committee assuring them that the House's failure to extend the Protect America Act had already led directly to lost intelligence. What's pertinent here is the reasoning. Namely, that the phone companies who've cooperated with the government, at times illegally, are reluctant to continue doing so without assurances that they bear no financial liability.

While the fear mongers on the right would have you believe that the moment the PAA expired, every surveillance tool in the government arsenal went out the window and left the country sprawled out on its back waiting for an imminent attack, the letter paints a different story. In fact, Mukasey and McConnell hardly broach a subject other than the telecoms' cooperation, saying that "although most partners intend to cooperate for the time being...they may well cease to cooperate if the uncertainty persists."

Uncertainty, of course, refers to the inclusion of retroactive immunity. Bear in mind that phone companies working on a court order filed through the very broad processes laid out by the amendments to FISA in August of 2007 would bear no liability. If you're working within the rule of law, there aren't consequences. What's at stake, rather, is the telecoms' liability for past actions, when laws were broken. So the suggestion here is that cooperation within the law is impossible given that someone may be held accountable for past law breaking.

In some places, Mukasey and McConnell seem to be on the cusp of grasping the logical inconsistencies, yet so far away. For instance, they say "expiration would create uncertainty concerning...the continuing validity of liability protection for those who assist us according to the procedures of the Protect America Act." Here, again, they put forward an obviously disingenuous argument. No company is liable when acting within the law. That's why the law's there. What the issue is here is what happens to companies that acted outside the law in the past, and that has precisely zero bearing on what happens legally in the future.

This is par for the course, after all. The administration makes its argument on one set of circumstances, while its opponents are more worried about reality. Such as dragnet surveillance. What's infuriating is the framing of the debate in this manner. No one really thinks the government shouldn't be able to gather intelligence from foreign agents. Some just think it should be done within the rule of law and not done by funneling domestic phone and internet traffic through secret rooms in AT&T's offices.

Indeed, the House had offered an intelligence bill which would have extended the PAA for three weeks to allow for more deliberation, an act which was shot down by the Republicans. The House Democrats are willing to grant the President everything in the Senate bill sans retroactive immunity. Clearly, a bill which would not prevent the government from collecting foreign surveillance. So, who's the real villain here? Congress for offering a bill that would extend all necessary provisions for continued surveillance? Or the administration who refuses to accept it - thereby causing a dangerous loss of intelligence, if you believe the AG - because someone might have to answer for breaking the law in the past?

To be clear, foreign targets have no recourse in the American court system. The telecommunications industry has nothing to fear from them. It's domestic traffic that's the issue here, and it's egregious for this administration to continue suggesting that failure to include amnesty for AT&T in this bill puts foreign surveillance at risk.

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