The stage is set for the showdown over FISA, telecom immunity

February 1, 2008

With the president having signed a 15-day extension of the existing surveillance law (the poorly-named “Protect America Act”), senators have finally crafted a plan on what happens next. Paul Kiel sets the stage.

So, after all that, after all the back room offers and counteroffers and fear-mongering and delaying, the Senate has finally struck a deal on the surveillance bill, and everyone has agreed to it, including Sens. Dodd and Feingold, so there should be no filibustering this time around. They’ll get to voting on it all on Monday.

Most crucially, the Dodd/Feingold amendment, which would strip retroactive immunity for the telecoms from the bill, will only need 51 votes to pass. The same goes for the related Specter/Whitehouse amendment, which instead of offering immunity to the telecoms, would replace the federal government as the defendant in all the lawsuits.

Keep in mind, there are some differences of opinion about whether this landscape is encouraging or not, and regrettably, two people I look to for guidance disagree with one another — McJoan believes the deal going into Monday offers us hope; Glenn Greenwald does not.

In the meantime, Dick Cheney is going on the offensive (natch), appearing on Rush Limbaugh’s show (again) this week to make the White House’s case: “Those [telecommunications] companies helped specifically at our request, and they’ve done yeoman duty for the country, and this is the so-called terrorist surveillance program, one of the things it was called earlier. It’s just absolutely essential to know who in the United States is talking to Al-Qaeda. It’s a program that’s been very well managed. We haven’t violated anybody’s civil liberties.”

I don’t want to alarm anyone, but what the Vice President said isn’t true.

I think Keith Olbermann’s “special comment” last night summed up the argument quite well:

“In a presidency of hypocrisy — an administration of exploitation — a labyrinth of leadership — in which every vital fact is a puzzle inside a riddle wrapped in an enigma hidden under a claim of executive privilege supervised by an idiot — this one … is surprisingly easy.

“President Bush has put protecting the telecom giants from the laws… ahead of protecting you from the terrorists.

“He has demanded an extension of the FISA law — the Foreign Intelligence Surveillance Act — but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.

“Congress has given him, and he has today signed a fifteen-day extension which simply kicks the time bomb down the field, and has changed nothing of his insipid rhetoric, in which he portrays the Democrats as ’soft on terror’ and getting in the way of his superhuman efforts to protect the nation… when, in fact, and with bitter irony, if anybody is ’soft on terror’ here… it is Mr. Bush.

“In the State of the Union Address, sir, you told Congress, “if you do not act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger.”

“Yet you are willing to weaken that ability! You will subject us, your citizens, to that greater danger.

“This, Mr. Bush, is simple enough even for you to understand: If Congress approves a new FISA act without telecom immunity and sends it to your desk and you veto it — you, by your own terms and your own definitions, you will have just sided with the terrorists.

“Ya gotta have this law, or we’re all gonna die. But you might veto this law!

“It’s bad enough, sir, that you are demanding an ex post facto law which would clear the phone giants from responsibility for their systematic, aggressive, and blatant collaboration with your illegal and unjustified spying on Americans, under the flimsy guise of looking for any terrorists stupid enough to make a collect call or send a mass e-mail.

“But when you then demanded again, during the State of the Union address, that Congress retroactively clear the Verizons and the AT&T’s, you wouldn’t even confirm that they actually did anything for which they deserved to be cleared!

“‘The Congress must pass liability protection for companies believed to have assisted in the efforts to defend America.’ Believed? Don’t you know? Does the endless hair-splitting of your presidential fine print, extend even here?

“If you, sir, are asking Congress, and us, to join you in this shameless, breathless, literal, textbook example of fascism — the merged efforts of government and corporations who answer to no government — you still don’t have the guts to even say the telecom companies did assist you, in your efforts?

“Will you and the equivocators who surround you like a cocoon never go on the record about anything? Even the stuff you claim to believe in? Silly me. Of course Mr. Bush is going to say ‘believed.’

“Yes, it sounds dumber than if he had referred to himself as ‘the alleged president,’ or had said today was ‘reportedly Thursday,’ or had claimed ‘Mission Accomplished’ in Iraq.

“But the moment he says anything else, any doubt that the telecoms knowingly broke the law, is out the window, and with it, any chance that even the Republicans who are fighting this like they were trying to fend off terrorists using nothing but broken beer bottles and swear words couldn’t consent to retroactively immunize corporate criminals.

“Which is why the Vice President probably shouldn’t have phoned in to the Rush Limbaugh Propaganda-Festival yesterday.

“Sixth sentence out of Mr. Cheney’s mouth: The FISA bill is about, quote, ‘retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States.’

“Oops….

“The primary job of any president is to protect us. Not just those of us who own Internet and Telephone companies — All of us. And even you, sir, with your intermittent grasp of reality… even with your ego greater than a 100-percent approval rating… even with your messianic petulance — even you could not truly choose to protect the corporations instead of the people.

“I am not talking about ethics here. I am talking about blame. Even if it’s you throwing out the baby with the bathwater, Mr. Bush, it still means we can safely conclude… there is no baby!

“This is not a choice of protecting the telecoms from prosecution, or protecting the people from terrorists, sir. It is a choice of protecting the telecoms from prosecution, or pretending to protect the people from terrorists.

“Sorry, Mr. Bush. The eavesdropping provisions of FISA have obviously had no impact on counter-terrorism, and there is no current or perceived terrorist threat, the thwarting of which could hinge on an e-mail or a phone call going through room 641-A at AT&T in San Francisco next week or next month.

“Because if there were, Mr. Bush, and you were to, by your own hand, veto an extension of this eavesdropping, and some terrorist attack were to follow, you would not merely be guilty of siding with the terrorists, you would not merely be guilty of prioritizing the telecoms over the people, you would not merely be guilty of stupidity, you would not merely be guilty of treason… but you would be personally, and eternally, responsible.

“And if there is one thing we know about you, Mr. Bush, one thing that you have proved time and time again under any and all circumstances, it is that you are never responsible.”

But the Democrats still have not the slightest clue how to really play the game.

Ok, so there is a two-week extension, the first week of which is a week off. Cheney is already out on the airwaves pushing his case.

Can anyone tell me the coordinated Democratic plan to use this week to generate public support for their side of the dispute? Are there uniform talking points to use at meetings back home? Releases to local newspapers? Is there a national ad campaign noting that Bush is lying about when the surveillance started to provide his friends protections that you and I would never have?

Anything? Bueller?

Or are we extending 15 days for nothing, to come back and be in the same fearful-of-what-the-Republicans-will-say-about-us position we’ve been in since June 2007 on this bill? (or in even worse shape, as Cheney at least seems intent on actually using the 15 days to make his case).

Oh well. At least between the debate and now I had a few good hours of feeling happy about being a Democrat.

  • “…what the Vice President said isn’t true.”

    i’m shocked. SHOCKED to find there’s mendacity going on here.

  • Nobody believes Cheney anymore, but Reid is equally unbelievable when he says he will fight for the constitution.

    Replace Reid with Dodd, and we’d be mopping the floor with the Republicans.

  • Just a minor quibble with Olbermann– the telecom immunity provision is not an “ex post facto law.” The Ex Post Facto Clause prohibits legislation which retroactively increases criminal liability or punishment; telecom immunity would retroactively mitigate civil liability. The Supreme Court’s interpretation of the Ex Post Facto Clause has been relatively stable for over 200 years, and there is simply no way that the proposed telecom immunity would fall within its scope.

    (Shameless plug– look for my article on the application of the Ex Post Facto Clause to the federal Sentencing Guidelines in Volume 110 of the West Virginia Law Review, forthcoming April 2008)

  • In the meantime, instead of trying to preserve Constitutionally guaranteed rights to privacy, Senator Arlen Sphincter (R-PA) is starting an investigation of the so-called “camera-gate” incident in which the National Football League fined the New England Patriots for ignoring a league rule about what location in a stadium you can record on film/tape the events occuring during a football game. Imagine, a Republican accusing someone of cheating.The irony is unbelievable.

    Instead of ivestigating the liars and cheats in his own party, he choses to go after events happening in a game that has no effect on the average person’s well being or privacy.

  • If not passed this will surely give the GOP some major talking points for the general election as you know the average Joe has no interest in figuring out the details of this fine mess.

  • I’m still waiting for an astonishing display of leadership by our two presidential candidates.

  • CB said: I think Keith Olbermann’s “special comment” last night summed up the argument quite well:

    Now there’s an understatement. 🙂

    Zeitgeist makes an excellent point. Where’s the PR campaign from the Democrats? Where’s the attempt to rouse public opinion? That used to be part of the job and the Reps certainly still do it.

    BTW, I’d like to say how much I appreciate Zeitgeist’s fact-filled insights and Anne’s thoughtful comments in general.

  • Actually, I think by any true definition of “ex post facto law” that this is in fact an ex post facto law. It is not one that falls under the Constitutional provision, as the Constitutional provision limits its reach to only a certain type of ex post facto law. But this is definitely an ex post facto law.

  • bubba,

    The Supreme Court in Calder v. Bull (1798), which noted that the phrase “ex post facto law” is a legal term of art, would disagree with you. It’s not entirely clear to me it means to suggest that the term “ex post facto law” has some Platonic meaning that is different from the meaning incorporated in the Constitution (which incorporated the term as it had been used in the English courts), but in any event, if Olbermann meant it as a criticism, which I think is a fair assumption, he must have meant to use the term as it appears in the Constitution, not in whatever extra-legal meaning it may have (and again, I’m skeptical that it has any).

  • Sorry, omitted a word. I meant to say, “It’s not entirely clear to me WHAT it means to suggest…”

  • I would venture to guess that probably 80% of the country has no grasp of the issues here, the principles that are at stake, the precedents that are being set, and what that means even for those people who “aren’t doing anything wrong.” As long as life seems normal to them, it just doesn’t matter. Most of them still believe they could not just be snatched out of their homes or offices, denied legal counsel, prohibited from letting their families know where they are, held indefinitely and subjected to harsh interrogation techniques – and they believe this is impossible because they are Americans and this is a democracy.

    Or is it?

    Is it a democracy when your government, without your consent, behind closed doors, in agencies and departments and with the permission of the courts, systematically weakens and eliminates rights and privileges and guarantees you thought the Constitution afforded you?

    Try explaining what has happened to America in the last six years to the average uninformed person, and you get “the look.” You know the one – it seems to say “gosh, and here I always thought you were sane – now you sound like a paranoid conspiracy theorist.”

    As hard as this administration has worked to scare the American people into meekly accepting whatever it is doing, the Democrats had a responsibility to educate the people; fear is countered not with more fear and more erosion of rights, but with information – and on this point, Democrats have been AWOL, for the most part.

    Yes, we want the government to have the ability to listen to suspected terrorists, but the American people do not seem to realize that their government seems to regard us all as potential terrorists, otherwise the government would not have seized the authority to take anyone – citizen or not – into custody with no evidence other than a gut feeling. This should frighten people a lot more than the prospect of another 9/11-style attack. It ought to frighten them even more that the Congress was complicit in almost all of this – and many of them were Democrats.

    Democrats need to stand up for the country and for the people. Clinton and Obama need to assert some leadership on this issue – what better time to take a stand than when the microphones and the cameras are always present. They could make this an election about getting our country back from those who have undermined its strength. It could be about what really makes us strong – and it isn’t giving the government the ability to spy on us at will, with no protections for how that information will be used. First, they may have to explain some of their own votes, but hey – if Chris Dodd can forcefully and eloquently repudiate his own vote on the Military Commissions Act, Clinton and Obama ought to be able to repudiate whatever bad votes they have made (‘ought to” being the operative phrase, since Clinton seems to have some trouble admitting these kinds of errors).

    Sorry this is so long, but this is an issue that really gets me going.

  • From Black’s Law Dictionary, the general definition is: A law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.

    Thus in its general meaning, it is a law with retroactive effect or consequences. Which this law definitely is. True, it does not fall within the legal term of art that has developed for Constitutional purposes when reference is made to ‘ex post facto laws’ in that context, but it is, nonetheless, an ex post facto law.

  • Bush wants us to become accustomed to the idea of retroactive immunity for reasons that are both manifold and obvious.

  • jen flowers said:
    I’m still waiting for an astonishing display of leadership by our two presidential candidates.

    Excellent point, Jen. They have such a unique pulpit right now that they could get any issue the attention it needs. Instead of telling us how they’re going to lead, they should show leadership now! They’re still working for us so they should be working for us. I know it’s arcane, but I wonder if Dodd got a bump in the polls when he interrupted campaigning to go back to DC and filibuster?

    James Dillon said (Shameless plug– look for my article on the application of the Ex Post Facto Clause to the federal Sentencing Guidelines in Volume 110 of the West Virginia Law Review, forthcoming April 2008)

    Ya know i was just browsing through Volume 109… 🙂 Ditto on the kudos, James.

  • Olbermann defines telecom immunity as a “shameless, breathless, literal, textbook example of fascism — the merged efforts of government and corporations who answer to no government…”

    Precisely right.

  • “From Black’s Law Dictionary, the general definition is: A law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.

    Thus in its general meaning, it is a law with retroactive effect or consequences. Which this law definitely is. True, it does not fall within the legal term of art that has developed for Constitutional purposes when reference is made to ‘ex post facto laws’ in that context, but it is, nonetheless, an ex post facto law.”

    With due respect to Bryan Garner, who is a brilliant guy and generally very meticulous, that definition is just wrong. The Supreme Court in Calder v. Bull made very clear that the meaning of the phrase “ex post facto law” as used in the Constitution refers only to retroactive laws that criminalize behavior that was innocent when committed, enhance the punishment for a crime beyond the level that would have applied on the date the crime was committed, or alter the rules of evidence to permit a conviction on less or different testimony than would have been the case on the day the crime was committed. That definition has been uniformly applied by the Court ever since it was first announced in 1798, most recently (I think) in Garner v. Jones, 529 U.S. 244, 250 (2000) (citing Collins v. Youngblood, 497 U.S. 37 (1990). Collins relied directly on Calder v. Bull and various other Supreme Court cases which all say the same thing. So while Garner’s definition supports your position, that definition is simply incorrect in light of over 200 years of Supreme Court interpretation of the Ex Post Facto Clause. There is not a single Supreme Court case that has ever suggested that the Ex Post Facto Clause might apply to legislation which retroactively mitigates potential civil liability.

  • I do agree too many of our fellow Americans are not contextually literate in politics, or society in general, to even fathom an understanding of the peril this WH has perpetrated upon our civil liberties. Far too many Americans are apolitical, and when they are disappeared, their attitudes of “It Can’t Happen Here” will have been terminally disproved. Without any response to this trend toward fascism, the days of Coultergeist will be upon us all far too soon. -Kevo

  • If not passed this will surely give the GOP some major talking points for the general election as you know the average Joe has no interest in figuring out the details of this fine mess. -JRS jr

    Sorry, jr, but i just called my buddy, Average Joe, and he says he’s already figured it out and found it interesting. He also suggested you must work in an old folks home cafeteria.

    I said, what do you mean?

    He said, that would be right wing talking point heaven.

  • “With due respect to Bryan Garner, who is a brilliant guy and generally very meticulous, that definition is just wrong.”

    Whatever.

  • “Whatever.”

    Wow, now there’s a clever response to the two centuries of Supreme Court precedent that says you’re wrong. Was that really necessary to post? I tend to think that silently bowing out would have been a more graceful exit.

  • My only quibble with the brilliant Mr Olbermann is his assertion that the duty of every President is to protect the people. Not true sir, with all due respect, the duty of every President is to protect and defend the Constitution Of the US from ALL enemies, foreign AND domestic.

    And other posters are exactly right, Hillary and Barack need to be out there LEADING on this. And every Dem needs to be in the public eye TEACHING about the importance of no retroactive immunity. And basically immunize themselves against Oct and Nov smears of soft on terror BS by getting out in front of it, and learning the public about ehy it’s UnAmerican to do what has been done.

    Oh, and my other minor quibble, Keith also should have pointed out again how the telecos jumped at the chance to break the laws when they were being amazingly well paid for it, but halted their participation when the Feds forgot to pay their bills. That should be a key selling point against all of it, in re., the importance of eavesdropping being done in the first place. And he should have pointed out that it all began BEFORE Sept 11. So whatever post 9/11 justification they had is effing hogwash. Which is why I hope the Spector/Whitehouse bill fails. Telecos made major big bucks paid with our taxpayer funds to do this. Why should more of our funds be used to pay the penalties the courts will provide?

    Oh, and thanks to James Dillon for the Ex Post Facto lesson. But I knew what KO meant, that laws shouldn’t be changed to make something legal after they were broken. And as a literal translation, ex post facto, suffices, methinks, but then IANAL.

  • “Oh, and thanks to James Dillon for the Ex Post Facto lesson. But I knew what KO meant, that laws shouldn’t be changed to make something legal after they were broken.”

    There are some situations in which it may be reasonable to retroactively mitigate civil or criminal liability for violations of laws in effect at the time of the offense; it’s essentially a form of legislative pardon or commutation, and there’s a big difference between the fundamental unfairness of punishing someone for commiting an act that was not illegal at the time it was committed vs. letting someone off the hook for violating an existing law with what we judge, after the fact, to have been a good justification. The situation facing the telecom companies may or may not have been sufficient justification for their complicity in the government’s allegedly illegal surveillance, but I think the debate needs to take place at that level– i.e., examining whether or not the telecoms were sufficiently justified to warrant retroactive immunity– rather than at the level of debating retroactive immunity per se, because the general proposition that Congress has the authority to retroactively eliminate civil liabiliy for the violation of federal law is both 1) well-settled under Supreme Court precedent, and 2) pretty well justified as a general matter, at least in my view.

    In any case, I’m sure we all knew what he meant, but in using a legal term to express his criticism, it seemed to me that he was at least implicitly arguing that the telecom immunity provision would be unconstitutional, and I think it’s important to understand why that’s not the case.

  • another taxpayer subsidy to the rich, just like when Mr Snows company cut the maintenance of their rail lines and caused a moral hazard that cost 8 people their lives his company didn’t pay the 50 million dollar lawsuit the taxpayers did thru amtrak, then we had to pay his salary as part of the Bush team. When are the democrats going to stand up for the people?

  • If there are no consequences for breaking the law then Bush has decided who comes under the rule of law and who doesn’t. These telecoms didn’t break the laws over a sense of patriotism but because they were offered government contracts to do so. Those who did not accept Bush’s bribes and refuse to break the law asking instead for a warrant were punished. And neither are willing to tell us who they were spying on and without a warrant there was no oversight and they could have been gathering information on democratic leaders and donors to dem candidates etc. Cheney hides everything including erasing the visitor’s records and then turns around and tells us to just trust them…no oversight. Nobody but corrupt and dishonest people act this way.
    There must be consequences for those dems who vote with the republicans on this issue because it could not pass without the dems catering to legalize Bush’s and the telecom’s activities. Please make your senators aware of the consequences for turning on the constitution, the rule of law, the people and joining the republican corruption.

  • you know, i think i have the perfect compromise on this issue figured out.

    grant another extension of FISA in the form presently extended but with a provision added that stays all civil actions against the cooperating telecoms but does not immunize them, and have this extension run until January 19, 2009.

    then on January 20, 2009, grant them immunity solely in exchange for their full cooperation in the investigation of and testimony in the prosecution of Bush, Cheney and anyone else involved with the surveillance program.

  • BushCheney will just add a signing statement to (pretend to) negate any of the Democratic amendments that pass.

  • One of our founding fathers, Ben Franklin, once wrote “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

    The government spied on American citizens without warrants, which seems to my admittedly limited understanding of Constitutional law to be a violation of the Fourth Amendment which says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If the government had “probable cause” then it should have obtained warrants…period.

    Which brings me to perhaps the most troubling activities our government is engaged in today: holding prisoners indefinitely without charging them with a crime, denying these prisoners access to legal counsel, and the possible use of torture as a means of extracting information from these prisoners. I can hardly believe I am mentioning such activities in reference to our own government! The Sixth Amendment says “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

    We should not be so quick to let the government take away our constitutional rights for a little perceived security. Elements in our government would like nothing better than to frighten us so badly that we simply hand our liberties, our power over to them. Big brother is watching with greedy eyes. I think old Ben Franklin was right. If we give up a little liberty for a little security, then we deserve neither…and get what we deserve.

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