The Bush administration wants the US Congress to approve a new FISA extension/revision, with a provision that grants immunity to telecommunication firms against civil suits for complicity in the domestic spying that the administration won't actually admit happened, but claims was legal if it did happen. The Senate has already approved. The House is resisting. The majority of liberal punditry categorically opposes it. For the most part I oppose the administration's justification for this immunity, and I agree with everything in Keith Olbermann's rant about this issue -- except his ulitmate conclusion. After due consideration, I had to conclude that the immunity provsion is appropriate.
My reason is simple: the domestic spying issue is a criminal matter. I believe that criminal courts should pursue it, and I don't believe that the civil courts should be used to facilitate an investigation of it in an attempt to force the Justice Department into action. That's what the liberal orthodoxy is hoping for, and I consider it to be nothing more than promotion of abuse of process. The justice department won't be forced into anything until this administration is out of office, but they will take action in due time.
The civil courts are not the proper venue. They are not equipped to investigate or properly adjudicate matters like this, and they lack the jurisdiction to punish the true offenders. It would be a travesty of justice for the telecomm companies to be punished for complicity while the perpetrators within the administration remain unpunished. Furthermore, it would be egregiously wrong for Congress to set the telecomms up to be punished for going along with the administration on this, when in fact it was Congress itself that provided the administration with the tools -- specifically, the Patriot Act and its national security letters -- that tied the hands of the telecomms and prevented them from seeking competent independent legal opinions as to the legality of the surveillance, or from going public..
So give the administration the telecomm immunity that it demands, and force other concessions in return. Then go about the business of electing a new administration that respects the law, and then let loose the new leadership of the Department of Justice to investigate and prosecute the real criminals.
1. Curt Stone02/15/2008 05:18:55 AM
I applaud your thoughts to the 'center'. All issues should be considered on their basis not whether you consider yourself a liberal/conservative or Democrat/Republican. It annoys me when our representatives play politics instead of voting with their conscience.
2. Jerry Carter02/15/2008 08:19:38 AM
I have to agree with you on the abuse of process. It seems most of the witch hunts that originate with the liberal congressional leaders are usually aimed at making public matters of national security to the detriment of our ability to maintain, pursue or even think about security operations. (you'll hear conservative pundits call this "treason" oft times)
A also (selective interpretation) agree that Congress is where the discussion should start and end re: providing the tools. Ron Paul (disclaimer: not a Ron Paul Supporter at this time) makes similar arguments against prosecuting the "war" in Iraq. Essentially: Illegal, Congress overstepped when providing the authority, remove the authority. (not a bad argument and the only one I presently find reasonable for extricating from Iraq other than regional stability)
I don't think that means you pitch the justice department into the fight. I think that would fall under more abuse of process. If Congress provided the tools, let Congress take the tools away. End of story. But, if the legislature (in its infinite wisdom) leaves the law stand, then there should be no prosecutions. The tools were provided, the tools were used and the aim was (IMHO) just, even if some of the actions undertaken may run afowl of other legal documents also approved by a Congress. I'd make a case for simplified law here but that would be a fantasy and off topic.
3. Danny Lawrence02/15/2008 10:17:54 AM
I agree with most of what you are saying except "give the administration the telecomm immunity that it demands, and force other concessions in return."
GWB has been notorious in not conceding anything to Congress. If congress tries to force accountability anywhere else in exchange for telecom immunity, he will just stand up and say they are "helping the terrorists" by doing so.
Not that I have an answer, other to note that, as Olberman pointed out, any existing FISA wiretaps are good for a year and takes up past GWB's last day in office.
4. Bruce Perry02/15/2008 11:06:01 AM
I agree with Danny. If he believed that getting this point worked out was an issue of national security, GWB could have opted to meet with congressional leaders and worked this out quietly. Instead, he and the republicans have opted to play the fear card again.
It's hard to believe that GWB would bargain in good faith on this issue. He's very busy using it to score political points. Heck, if they have it to him, he might just issue a signing statement that he interprets telecom immunity to mean that he gets to invade or bomb Iran.
You make a good point about it being unjust for the telecoms having to bear the brunt of this. If Congress was doing its job, the lawsuits would not be necessary. I think many are so sick of the congressional democrats' failure to do actual oversight that they're looking for any avenue for redress.
And don't even get me started on the issue of abuse of process. This is where the Bush administration rises to greatness. Inconvenient facts? Classify them or erase the tapes. Subpoenas? Claim they don't apply or erase the tapes. FOIA requests? ignore, delay, or classify
BTW, I can't wait to see the apocalyptic fits republicans will have the next time a democratic president issues a signing statement.
5. Richard Schwartz02/15/2008 03:44:51 PM
@2 Jerry -- glad you're not falling for the Ron Paul sophistry. There might be some hope for you yet I do want to correct you on one misunderstanding, however. When I said that Congress provided the tools, I was not stating that Congress provided the tools for the violations of FISA that the administration authorized. I was stating that Congress provided the tools that the administration used to force the hand of the telecomms into going along with this violation of the law. The surveillance was illegal before and after Congress passed the Patriot Act, but by passing such an ill-conceived piece of legislation Congress gave the administration the power to compel the telecomms to go along with and keep silent about this illegal activity. Thus, an investigation by the DOJ of the administration's illegal activity is warranted, even if civil and criminal investigations of the telecomms are not justified.
@3,4 Danny & Bruce: Yes, I have to agree that getting concessions on other points from the administration is unlikely, particularly with the Senate rolling over the way they have. Nevertheless, I think it is worth going through the process, and I don't think holding out for telecomm immunity is the right fight to be having.
6. Turtle02/15/2008 06:09:10 PM
Worth pointing out is that the Patriot Act was passed by a Republican-led Congress, but it's still disingenuous of them to try to get at the telecoms for doing what the White House wanted instead of wrestling GWB to the ground and tasing him for asking them to do patently unAmerican things in the name of some "war on terror."
After January 20, 2009, I hope I never hear that phrase again.