Given the on-again/off-again nature of the debate, it’s understandable that much of the political world has had trouble staying engaged on the fight over the administration’s surveillance powers and retroactive immunity for telecommunications companies that apparently broke the law when they cooperated with Bush’s warrantless-search program.
But the debate is roaring back right now, and it’s a good time to get the game face back on. The White House is certainly gearing up.
The White House is trying to force a political confrontation this week over the terrorist surveillance issue — threatening to label congressional Democrats as soft on national security unless they quickly approve a new bill that would gave the U.S. intelligence community vastly enhanced spying powers. The bill includes a hotly contested provision that would grant blanket immunity to telecommunications companies facing lawsuits for cooperating with intel agencies after the 9/11 attacks. The aggressive new White House position reflects a political assessment that, with the fall elections approaching, the administration has the upper hand on an issue that has proved sharply contentious for nearly a year, according to Republican aides and lawyers familiar with administration thinking.
In recent days the White House has quietly sent word that President Bush will veto any surveillance bill that does not include immunity for telecommunications companies. “The administration is going to play very tough here,” said David Rivkin, a Washington lawyer who has participated in strategy sessions with White House aides regarding the issue.
This, of course, is not what Democratic leaders on the Hill want to hear — even the possibility of Mr. 28 Percent calling Dems “weak” or “soft” on national security is usually enough to send far too many Dems running in the other direction.
But when it comes to telecom immunity, the administration really doesn’t have a leg to stand on, and there’s no reason in the world for Dems to back down.
The telecommunications immunity provision has proved especially controversial because it would effectively shut down more than 40 private lawsuits alleging that firms including AT&T and Verizon violated the privacy of American customers by secretly turning information about their phone calls and e-mails over to U.S. intelligence agencies without the authorization of the special Foreign Intelligence Surveillance Court. If the lawsuits were allowed to go forward, they could become vehicles for a full public examination of still secret orders and legal rulings that the president and Justice Department used to justify warrantless eavesdropping on American citizens after September 11. (emphasis added)
A couple of things. First, the warrantless eavesdropping on Americans wasn’t limited to “after” 9/11; as part of the warrantless-search program, the NSA started leaning on the telecoms for private data six months before 9/11.
Second, Dick Cheney popped up at the conservative Heritage Foundation yesterday, insisting that Congress needs to pass the administration’s bill because “the terrorists are still determined to hurt us.” I don’t doubt that for a second, but what does that have to do with Congress extending retroactive immunity to telecoms that broke the law? How is that relevant to lawmakers taking on the role of activist judges, short-circuiting ongoing legal battles that are currently in the judicial system?
And third, Newsweek’s description of the controversy, while incomplete, was actually helpful. I still hear from some Dems that the fight over retroactive immunity seems like a relatively insignificant flap. Whether a bunch of telecoms get a sweetheart deal or not is of some interest, but it’s a bit of a tangent, and hardly something to go to the mat over.
That’s just wrong. Even if one is willing to set aside principles about the rule of law and accountability, the reason the Bush administration is prepared to veto the entire surveillance bill over retroactive immunity is precisely because it helps keep the illegalities of this scandal under wraps. If the lawsuits are allowed to go forward, as they obviously should, plaintiffs may be in a position to peel back the curtain on one of the administration’s more blatant examples of lawbreaking.
That’s why they’re lying (saying the telecoms only helped in a national emergency) and that’s why they’re willing to “play very tough here.”
Dems who go along with this nonsense are making a horrible mistake.