The Senate has decided to delay its vote on the surveillance bill and specifically the immunity provision for the telecommunications companies. However, civil libertarians have little reason to celebrate. The telecom lobbyists appear to have the upper hand with some members of the Democratic leadership, which hopes to pass the immunity bill once attention fades in 2008. In an astonishing move, Sen. Diane Feinstein is trying to move the entire matter out of the federal courts and into the secret FISA court. The only value of such a move is to reduce the political fallout and make immunity more likely for the telecom companies.
Despite the overwhelming opposition to immunity among Democrats, Independents, and civil libertarians, the Senate has been quietly working with lobbyists for the industry to find ways to grant immunity. The move would kill over 40 lawsuits by public interest and civil libertarians groups. It would stop the work on judges, who have refused to dismiss these important cases.
Notably, Majority Leader Harry Reid has shown lukewarm support for those like Sen. Dodd, Kennedy, and Feingold opposing immunity. As usual, the Democrats on the Senate Intelligence Committee — led by Sen. Rockefeller — supported the White House in killing the pending and future lawsuits. The Democrats on the Judiciary Committee supported the civil liberties side and denied immunity in their bill. Reid initially moved the pro-telecom Intelligence bill to the floor first and did little to assist his colleagues in moving the pro-civil liberties measure. It was only after a determined campaign from advocates and Democratic colleagues that he relented in allowing both bills to go to the floor — but insisted that the Senate Intelligence bill would be the first legislation. This meant that it would have to be amended. Nevertheless, the filibuster tactic by Sen. Dodd paid off. The heat was too intense for Democrats and Reid decided to pull the legislation in 2008. However, before it was pulled, it was clear that, once again, the Democrats are divided on a fundamental issue of civil liberties.
Feinstein’s proposal is particularly worrisome. She would have the entire matter given to the secret FISA court. Why? Federal courts routinely review secret information given in camera and ex parte by the government. I have been counsel in cases with information classified at this level without the need to removal it to the FISA court. The benefit goes entirely to the telecom companies. First, it would reduce the vulnerability of the companies by reducing the number of judges. It is likely that one or more of these judges will side with the civil liberties groups. This would reduce it to one court with a long conservative, pro-intell record. Second, it would prevent the public and media from witnessing the proceeding — thereby giving these Senators political cover and reducing public backlash. Third, it would reduce the ability of the parties to argue their cases. Private counsel is normally barred from FISA proceedings and the court does not allow for the basic procedures of discovery and adversarial process.
There is no good policy argument for immunity. If the White House is correct and they acted legally, they have nothing to fear. But these Democrats and the White House know that the companies did not act lawfully. Thus, they are struggling to protect the companies for our own courts and our own laws.
The disconnect with voters is extraordinary. As with the torture vote, the fix is in on immunity. The only question is timing. This cynical manipulation of the vote reflects a certain contempt for Democratic voters and a major flaw in our political system. While civil liberties advocates like Sen. Feingold exist in the Senate, there remains a general lack of support for these principles over political expedience.
The telecom vote is similar to the torture vote as a defining moment. Senators need only to trust our legal system and not try to rig the results. As noted by Sen. Kennedy, the Senate should let President Bush veto a national security bill to protect companies from liability. Such an act would put the true motives of this Administration into sharp relief.
The hope among some Democrats is that they will be able to slip in the immunity provision early next year when voters are distracted by other matters. What is clear is that these companies and the White House will prevail absent a change in heart and politics in the Senate.
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Arabella
I’m not entirely disagreeing with your assessment of your Senators’ actions or lack thereof, but let me offer this.
I was listening to Thom Hartmann on Air America today. He mentioned that the bill that came to the floor, which Sen. Dodd filibustered, was the version from the Intelligence Committee (Jay Rockefeller, Chairman–what’s up with that?). There is a second version. The second version came out of Pat Leahy’s Judiciary Committee and DID NOT contain any immunity. Apparently, Senate rules required the debate on the Intell. Comm. version before the Judiciary Comm. version, perhaps because of when each came out of their committee. But I would be surprised if Sen. Leahy was not fully supportive of Sen. Dodd’s action.
Senator Sanders does an hour of interview and takes call-ins questions each Friday on Hartmann’s program (the segment is called: Lunch with Bernie). I can’t say I’ve heard Sen. Sanders on the specific issue of telecom immunity, but, as with Sen. Leahy, I’d be pretty shocked if he wasn’t also in strong support.
I’m far more surprised and troubled be Sen. Feinstein’s reluctance to do the right thing. She and Sen. Schummer bear a lot of responsibility for Judge Mukasey being AG and thumbing his nose at Congress’ attempts to rein in these illegal actions. Professor Turley’s blog discusses Sen. Feinstein’s moves that assure immunity. Her head seems to be twisted a bit too far to the political right these days. Perhaps she’ll join Sen. Leiberman in endorsing a Republican for President.
Perhaps there is an attitude of “mistakes were made, but your heart was in the right place so we are going to let these old excesses of zeal in the defense of the country be forgiven. Now move along, there is nothing to see hear folks.”
As a Vermonter, I’m particularly troubled that neither Senator Leahy nor Senator Sanders were on the no-immunity station wagon. (The few who were on it hardly constitute a ‘band-wagon.’) I really don’t understand this (plus the implicit consent to torture, plus the lack of follow-up about signing statements or any of the other Constitutional abrogations the current White House has engaged in).
What is equally striking is that a new poll shows both parties in Congress plummeting in public opinion. The Dems are now at just 30 percent. The great irony is that if they tried to be more principled they would be more popular. Instead, the public views them as double-dealing on issues like torture and unlawful surveillance. The Republicans are equally blind to these implications. They continue to follow lock step with one of the most unpopular presidents in history. Only people like Ron Paul are seriously challenging the status quo in the GOP ranks.
BTW – Thanks so much for your blog, Mr Turley. Your insight and point of view is greatly appreciated.
This abrogation of American values is stunning especially from Democrats that I and others worked so hard for in the ’06 election. This plus their approval of Mulkasey, inability to stop funding the occupation of Iraq, wet noodle approach with the media (call them filibusters already) and general spinelessness are enough to throw a wet blanket over grass root support for ’08. Who’s going to canvas neighborhoods and man phone banks for them?
Remarkable indeed.
It is a remarkable statement. After all of the opposition from Democratic voters, newspapers, bloggers, and civil libertarians, these Senators still need a member to trigger a filibuster to stop an obvious wrong from occurring. What is striking about the legislation is the total absence of any public value to immunity. We have a court system designed to address illegality and injury. The only reason that you would want immunity is if you believed that you have committed the underlying crime in this case. Note also that the Democratic and Republican Senators supporting immunity are not clamoring for an investigation into the underlying crimes; they only want to protect companies and the White House from the responsibility for those criminal acts.
In a piece by Sam Stein at the Huffington Post, he quotes a Dodd staffer as saying:
“Everyone who spoke on the floor said they were grateful for Dodd taking a stand,” said a staffer to the Senator who asked not to be named. “They said if it weren’t for him they wouldn’t be having this much-needed debate.”
“If it weren’t for him…”?? Isn’t that simply FRIGHTENING? Without Sen. Dodd’s courage to stand up for the Constitution and the American people, NOBODY else was going to do it. Not the Democratic “leadership”, not any of the other Senate members running for President, not any of the others who call themselves Progressives and certainly none of those Republicans who falsely claim to be guardians of strict adherence to the Constitution from judges and wrap themselves in the flag. No one without Dodd, heh? That’s very sad.
Now, Senator Dodd, come January you should unseat Harry Reid and become the Majority Leader. The truth is you have a far better chance to be successful and be of more help to the American people in that position than running for President.