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Telecom Immunity, The Day After

I’ve repeatedly voiced my opposition to granting the telcos immunity for their violations of the law. It seems obvious to me that if you break the law, you should be held accountable in a court. It doesn’t matter who asked you to break the law. It matters whether you broke it or not.

That ship sailed. The House, Senate, and President all said yes last week, and the immunity was granted. There are a few lawsuits left to settle, and a couple loopholes in the law that might kick in, but it seems like a done deal. Time for a bit of a post mortem.

Downsize DC echoed my initial reaction. “The 2006 Election Fails” they wrote.

In 2006 the electorate punished the Republicans. Voters gave the Democrats majorities in the House and Senate. Polls showed several reasons for this. Voters objected to Republican spending, Republican corruption, Republican lawlessness, and a reckless Republican foreign policy.

Democrats were elected to change these Republican policies. Now, two years later, all the Republican’s Big Government policies remain in place. Indeed, the Democrats have actually expanded those policies.

Partisan electoral politics has failed us again.

The latest evidence of this failure came yesterday, when a large number of Democrats joined with Republicans to give President Bush expanded powers to spy on Americans without a warrant. They did this by passing the “FISA Amendments Act.”

The Democrat controlled Congress also sent a strong message of toleration for government sanctioned lawbreaking. They did this by immunizing the tele-communications companies that had collaborated with President Bush to illegally spy on American citizens.

It’s hard to argue with them. The Democrats promised a change in direction, got elected, proclaimed that a new sheriff was in town. . . . and then proceeded to cave in to the White House on virtually every wedge issue from the 2006 election. What’s the point in electing the opposition if they do the same thing as their predecessors?

I was furious and disgusted. I was looking for a list of every Senator and Representative who voted to support this bill. I wasn’t sure what I was going to do with the list. Write a nasty letter? Promise never to give them money? Take them off my Christmas card list? I was pissed.

Obviously, not everyone thinks the same way. Andrew Sullivan made me think about it in less incendiary language:

It’s clear to me that the president seized powers beyond his reach and, more importantly, retained those powers after the initial crisis; it’s clear too that the telecom companies should have known they were complying with illegality and refused after an initial period.

But it seems to me the focus of blame should be on the president and should be exercized primarily through political rather than legal means. And the trouble with prosecution is that it does become difficult to determine when exactly we stop forgiving illegal actions designed for the public safety in the immediate wake of a catastrophe like 9/11. I do forgive it in the wake, and see some lee-way for executive energy in moments of crisis or unknowing probably for a while thereafter (even though it horrifies me that the Bush administration would have merrily assigned all these powers to itself indefinitely if it could, and not even told anyone, let alone come promptly to the Congress asking for a reformed FISA law). But how do you prosecute a company on the basis of that kind of blurry line – granting immunity before but not after a point we deem appropriate or defensible?

My concerns are appeased now that the Congress has signed on in the light of day, that a court is there as a safeguard, retroactively if necessary, and that FISA is re-established as the exclusive mechanism for government wiretapping. I don’t consider this a capitulation to triangulation or Beltway insiderism or to Obama-worship. I consider it a middle ground between vital intelligence gathering – the non-coercive type – in an increasingly complex telecommunications system in a very dangerous war.

Obama has had his own role in the firestorm. He was one of the ones who voted to approve the law. That vote seemed pretty hard to reconcile with his previous votes on the issue. He wrote:

After months of negotiation, the House passed a compromise that, while far from perfect, is a marked improvement over last year’s Protect America Act. Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

It does, however, grant retroactive immunity, and I voted in the Senate three times to remove this provision so that we could seek full accountability for past offenses. Unfortunately, these attempts were unsuccessful. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

I understand his point. He thinks that the FISA expansion was necessary. I don’t agree with him, but that’s one of those points where I think it’s easy for reasonable people to disagree. He doesn’t like the telecom immunity, and he fought it. He likes the FISA reform more than he hates the telecom immunity. Again, I disagree, but at least I get it.

I understand that there are times that you have to compromise. Heaven knows I do it; my Town Meeting notes are littered with votes where I voted for the best available choice because my actual preference wasn’t available. All in all, I’m not quite as pissed as I was last week. I’ve come around to understand how people opposed to telcom immunity voted for the bill.

Still, I’m sure: If it was me, I would have voted “no.”


Comment from Josh
Time: July 16, 2008, 11:35 pm

I’ve probably been reading too much Glenn Greenwald, but personally my initial reaction hasn’t changed. The amendment was not a compromise — the White House got everything they wanted. It’s not clear to me why the Democrats “compromised” at all, except possibly to appease telecoms that donate a lot of money.

The president did what he did, but as we’ve seen since Clinton, there’s no way to punish a lame duck president short of outright impeachment. I think the telecoms should have been held accountable, and the Congress deserves blame for letting them off. It all feels like another major failure in checks and balances to me.

The exclusivity thing is a joke too. The original FISA law had all the exclusivity the new law has, but that didn’t keep it exclusive.

Personally I’m bitter, and I’m going to have a hard time donating anything to Obama after he reneged.

Comment from dunster
Time: July 17, 2008, 10:32 pm

My one quibble with your statement is that Bush got everything he wanted. I don’t think that’s true – I think the bill that passed is somewhat watered down from the Protect America Act that failed to go through this winter. I’m having a hard time finding a reliable cite for that, though. . .

Obama wasn’t going to get my money anyway, so that’s a wash. The vote is still up in the air.