The Senate voted today to defeat an amendment by Senator Dodd to strip the FISA bill of immunity for telecommunication companies. It was the latest in a series of perceived betrayals by Democratic voters of their leadership, which helped Sen. Jay Rockefeller guarantee immunity for the companies. Sen. Hillary Clinton did not even show up for the vote, one of the most important civil liberties votes of this Congress.
Neither Sen. Clinton nor Sen. Obama were present for the final vote. Yet, the key vote was the immunity question. It was not a close vote, but it was a shocking absence given the criticism leveled at the party elite for their failure to protect civil liberties. Clinton released a statement saying that she both supported changes and opposed them — failing to note that it is hard to support or oppose anything when you do not exercise your vote:
“I believe we need to modernize our surveillance laws and give our nation’s intelligence professionals the tools they need to fight terrorism and to make our country more secure. At the same time, smart, balanced reform must also protect the rights and civil liberties of Americans. In my opinion, the FISA Amendments Act of 2007 falls short of these goals, and for that reason, I oppose the bill.
The fix was in, however, months ago when Senate Majority Leader Harry M. Reid (D-Nev.) picked the Senate Intelligence Committee’s proposal (favoring immunity) to be the legislation to go first to the floor.
While Reid has said that he personally opposes immunity and asked for additional time from the White House to work out a compromise, he made an outcome-determinative decision in selecting the Senate Intelligence Committee to lead on the floor. Due to that procedural choice, it will take 60 votes for opponents to stop immunity. It does not appear that they have the votes, which was obvious when this decision was made by the Senate Democratic leadership.
The Intelligence Committee Chair John D. Rockefeller IV (D-W.Va.) has long supported immunity. It was disclosed last year that Rockefeller knew of both the unlawful surveillance program and the torture program for years. The telecom lobbyists always had the upper hand with some members of the Democratic leadership, which hopes to pass the immunity bill once attention fades in 2008.
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 Reid 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.
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.While Senator Dodd is promising a fight, he has been clearly undermined by his own leadership. The vote again confirms the disconnect between statements of the Senate leadership to voters and their own actions — or lack of action. The leadership could have killed this immunity provision. Instead, senators will vote against it while ignoring the fact that they could have blocked it.
The loser, once again, is civil liberties.
Again, you scholarly types are having a high handed debate about this so I can’t join in on your level. So, let this used up old truck driver break it down for you: The telecoms broke the law, at the behest of the government, to be sure but they broke the law. This is a nation of laws; not men, corporations or convenience. Laws. If you break one, you should be charged, tried by a jury of your peers and, if convicted, punished. Plain and simple. This government spends money like water. You have up to 72 hours AFTER starting you surveillance to get the FISA court to OK your activities. So, spend a little more, higher a coupla’ hundred more lawyers and have them do the Potomac Polka pass this court 24/7. The snoops would have gotten what they wanted, (has this court EVER said “no”?) and it would have all been legal. Still rather chilling but legal. If immunity is pushed through, you may as well mark Feb. 12th, 2008, (Lincoln’s 199th birthday, no less!), as the antithetical to July 4th, 1776. Government sanctioned law breaking. The grand little 230 year experiment with democracy is over.
Mr. Turley,
There are several dozen alleged illegal wiretapping cases in the courts right now at various stages of adjudication, with Telecoms named as defendants. Can Congress pass a law that would retroactively shield these defendants from prosecution after the courts have already recognized the validity of their cases? I realize that the Telecom immunity proponents are saying that this argument is immaterial because the Telecoms “may have” performed illegal activities, but their actions were ultimately made “legal” by the PAA that was passed last August.
But do we know that to be true? According to recent whistleblower testimony, it appears that the earlier Telecom wiretapping activities may have gone way beyond anything authorized in the PAA. Only the courts can make that determination.
On it’s face, the Telecom retroactive immunity provision in the proposed legislation appears to be unconstitutional. Do the courts have any recourse should this legislation pass? Or are they supposed to throw these cases out simply because the executive and legislative branches of government have “retroactively” told them to do so?
Your thoughts?
Reilly–
deru kugi wa utareru, na?
Since they folded so quickly, I wondered if the wiretapping gathered up some
seriously negative information on key members of the Senate which was used to
persuade them to capitulate. There is a nasty word for it.
The Republicans continue to tear into the fabric of personal freedoms. I wish more of thier “base” understood that. And where are the Democrats on this?!! Cudos to Chris Dodd, but where are the others including our candidates for president. And as a former West Virginian I am totally ashamed of Jay Rockefeller.
Hi Patty C,
I can count on you for good memory (mine is gone).
Now the last remaining obstacle for the immunization forces to clear is the senate/house conference.
I know this sounds simplistic (and it is), but if the telcos did nothing illegal-then why do they need immunity? And if they did do something illegal-then why are we granting them immunity?
DW
DW: I did remember. We were taling about Kelo Redux that day (2/3), too
I’m glad you found the article.
http://writ.news.findlaw.com/sebok/20080129.html
Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers’ Communications?
By ANTHONY J. SEBOK
I would like to remind those who either forgot, or didn’t know: the whole point of the civil actions against the telcoms was to produce through discovery the extent of what was done in collecting our phone, fax, email, and web activities. Since the ACLU’s attempt via the ACLU v NSA cased got thrown out on the ludicrously circular, “you have no standing if you cannot prove injury, but you cannot prove injury without standing” argument by the Supreme Court, the only avenue left was in the civil actions against the telcos themselves. They could not plead state secret privilege and we would be able to get logs, suitably redacted, of what was gathered. HOWEVER>>>>>>
Comes the the Congress to the rescue, the civil actions are foreclosed, and if the House conference signs off on the immunity, we will probably have to wait 150 years or so to find out what happened and is happening still.
The next constitutional amendment really should be about secrecy and openness……..
As it stands now, there is good reason to believe that much of the phone traffic, domestic and international alike, originating or terminating on the West Coast was subject to bulk collection.
This is truly a stunning and mind-bendingly outrageous lawlessness on the part of both the telcos concerned and the Executive. But very soon we will have a nice ex-post facto legalization and we can all stop worrying our little heads about the 4th Amendment and such outdated abstractions.
deeply worried,
thanks for that link, I’ll check it out
Gout,
I think there’s some trouble with the tenor of your debate.
Employing a voice of calm maturity and reasoned moderation to mask
an argument lacking any measure of honesty in either thought or intent is sophistry.
I’ve never posted here before, but somehow I doubt this is the venue where those kinds of cheap tricks are going to fool too many people.
If you want to defend unconstitutional behavior, have the courage to say it out loud.
If your’re an avowed authoritarian say so but don’t insult the collective intelligence by stating; “it’s unhealthy to presume guilty action on the part of civil servants.” as if the remedy for that were a “healthy” dose of retroactive immunity, and as if any suspicions about their behavior must be attributable to excess emotionalism rather than, say, the very fact that they’re requesting retroactive immunity from the law.
As pathetic as that is, this is even worse:
“Like all citizens they’re ultimately subject to US laws.”
Yes, except the whole point of the legislation is the demand that they not be subjected to the law.
By the way as of right now, and until we descend further into fascism, the Telecom company’s aren’t considered “civil servants”.
Even sophistry usually isn’t this stupid.
oh yes, I remember:
http://writ.news.findlaw.com/sebok/20080129.html
As much as I would like to, I can’t sign on to the theory put here.
Reilly,
An interesting argument has been made elsewhere (Maybe Patty C remembers) that the retroactive immunity in the present bill vis a vis the 40 active lawsuits against the telecoms, represents a violation of the Takings Clause…..
Mr. Turley,
If you have the time, would you mind giving a breif history of any grants of retroactive immunity in the United States (as well as any attempts that were unsuccessful)and any history of retroactive immunity outside of this country that you are familiar with offhand.
Thanks.
Ask Dick Cheney.
You haven’t been following our discussion.
Retroactive immunity aside…
I think there’s some trouble with the tenor of the debate.
The memories of the Nixon Era still carry a lot of emotional baggage.
The Church Committee findings and FISA were the immediate reaction, but a generation of disillusioned folks continue to rail against the the intelligence community.
It’s a healthy thing to be suspicious of the erosion of civil liberties by agencies of government, but it’s unhealthy to presume guilty action on the part of civil servants. Like all citizens they’re ultimately subject to US laws. Like all citizens here, they should have some benefit of doubt. So while it may be a good informal policy to question and challenge intelligence reforms, make sure the motivation isn’t just emotion. Prejudice makes for bad intelligence, and bad government. Should prejudice guide examination of FISA?
Good speech-worth reading and posting, twice.
Dodd: The Rule of Law Abandoned, “Dark Day” in the Senate
February 12, 2008
http://dodd.senate.gov/index.php?q=node/4267
“…in this huge fabric of lawlessness, it was the closest thread to grab. I believed that if we grabbed hold and pulled, it would begin to unravel…”
Senator Dodd made clear his intentions to move the fight to the expected conference agreement between the House and Senate negotiators. The House previously passed a FISA bill that does not contain retroactive immunity and Dodd said he would use whatever tools were available to him, including forcing a cloture vote and taking to the Senate floor to implore his colleagues to stand with him, to try to stop a conference report that retains the retroactive immunity provision.
“…I have fought so long against retroactive immunity because, in this huge fabric of lawlessness, it was the closest thread to grab. I believed that if we grabbed hold and pulled, it would begin to unravel.
That hasn’t happened, Mr. President. But if we believe that each assault against the rule of law was an accident, that each was isolated, we’re deluding ourselves. If the past is any guide, there will be another one. And hope, as they say, springs eternal. I hope we will stand up then.
And perhaps we’ll have the chance to do so very soon. As you know, the House of Representatives has passed a version of this bill without retroactive immunity. It will be the job of the House-Senate conference committee to reconcile the two versions of the bill. And before I stand down, I want to implore the members of that committee, in the strongest terms I can find, to strip retroactive immunity from this bill once and for all…
Shouts Out, to Chris Dodd! Wooooooooohooooooooo!
Maybe the reason Al Gore refuses to endorse neither Hillary nor Barack
is that he IS thinking of jumping in – as an “Independent”.
He could have his pick of possible running mates.
Now the bulk collection of data can continue uncontested. Silly little civil libertarians with your childish fixations on constitutional protections! Let the serious adults protect you! We are at war! Endless war!
Endless protection.
Words fail.