“… the loving, protective Surveillance State.”

The attempt to hold back immunity for the corporations that spy on us is losing ground … well, after years of watching congressional inaction and wobble, we didn’t expect real spine, did we? I think we can all agree that the systems are broken — but the essential truth is that the players within that system are what slowly, bit by bit, decision by decision, brought it to its knees. Silly of us to think they’d suddenly throw the entire game just on principal [think Schumer and Feinstein and … grrrrr … Lieberman] which is why, in this election year when we will choose a Senator for president for the first time in forty-odd years, experience DOESN’T count for me. The game is the game is the game … is the alternate reality … in which we choose to function — and WaDC is, indeed, a separate reality with goals quite different from those advertised to the American people.

The case seems clear to me — the president broke the law, and convinced the corporations that they had legal cover to break it with him; holding them responsible to legal action would mean holding HIM responsible. Immunity for them is immunity for him. There are three players here in collusion — the government, the corporations and the legal eagles; put them all together and that spells fascism. The logic is undeniable.

Bush is yelping about how law suits directed at his cooperative telecom providers are the attempt of some to jump on the ‘gravy train’ — it’s revealing that his lowest common denominator is money. This is NOT about money, it’s about accountability … and we all know that George doesn’t “do” accountability. [Also interesting that in the last thirty years the GOP Think Tank mentality has managed to brand lawyers the scum of the bottom-feeder tank, while the vast majority of persons on the Hill ARE lawyers, engaged in creating national law. It’s as if the GOP criminalized itself and the nation as a whole in some grand, unconscious, self-hating spasm, to hide in plain sight and consider no tactic too vile to achieve their own ends. Now, THAT’s how to break a system!]

The public is crying for change, and to a lesser degree, accountability; somehow the confrontation that would require seems too messy for them — but how is it possible to face the tangle we’re in if we don’t come back to Constitutional bottom lines, which include penalties against law-breaking? And the legal Gordian Knot of not being able to protect the citizenry from government because a trial would expose state secrets … which have become legion, at this point, as have the judges that routinely throw these cases out … will continue to haunt us if we don’t call a halt to it soon.

In peeling the onion of our current situation, culpability counts — which is why I saw John Edwards as the next step out of the hole we’re in; the anger he was accused of made the nation uncomfortable, but I think that was because they are largely uninformed. Their desire for change is responsible for Obama’s success, that can’t be denied, but change without accountability won’t do it this time, in my opinion. Tragically, the public has been schooled to accept the fact that government screws them … they just don’t follow along to see how bad it’s getting.

If we make a leap from the Bush years to a Democratic president attempting to pick up pieces of a broken government and glue them together like the badly repaired levee’s in New Orleans, we’ll be vulnerable on levels we can’t even imagine; and that president will have to bare responsibility for whatever happens next. Given the challenges the next prez faces while standing in rubble not of their own making, then asserting no accountability for the playing field will make no clear distinctions in the public mind between them and the last guy — the public is notoriously impatient when it picks its “winners” … it will want to see change, and NOW. That is unlikely, my dears — no matter who takes the Oval Office. Not a rosy picture for rebuilding the nation.

Below, you’ll find an ACLU link to sign a letter to Pelosi and Hoyer thanking them for their FISA stand, and a place for your comments; be respectful — it’s hard, but try. This is a ‘numbers game’ — politico’s watch the numbers of those backing a move, so lets make sure there’s plenty of them.

The first piece is interesting, giving us a glimpse into congressional psychology — and this sound bite rings true … “the institutional urge to conceal.” Glenn Greenwald writes an important piece next on how far to the Right we’ve moved since FISA was established — another example of why ‘centrist’ anything is not a viable progressive alternative; but … well … too late now. The last article, by a law professor, gives us a glimpse of the ‘Zen we’re in’ with the Dubby’s machine; fascinating.

I worried excessively when Bush was handed another four years because we would be living through a 7-year cycle of this neo-crap … inability to halt repression and double-speak has become part of our very cellular memory now. It will not be easy climbing out of that hole — and we have nobody to blame but ourselves and our sleepy, compliant consciousness. We don’t all have to be activists and freedom-fighters … but we all have to be accountable for what we did, and didn’t, do. In fact, we expect to be … which is why a pass for the Bush Gangsters is unthinkable, and why the FISA bill is critical … and Bush’s accountability is long overdue.

Excellent reads, below.

Jude

Letter from the ACLU

Dear Speaker Pelosi and Majority Leader Hoyer,

Thank you for standing up to bullying from President Bush and rejecting his administration’s lies and fear mongering. You made a wise decision to let his reckless and unconstitutional spying bill expire.

For far too long, this president has been trying to expand his power at the expense of our freedom and the Constitution, while doing little to actually protect our nation. A meaningful debate will not weaken American security.

America must remain both safe and free. As you consider your next steps, please remember that our Constitution and the rule of law are what make us strong.

Add your name and comments here:

https://secure.aclu.org/site/SPageServer?pagename=Pelosi_Hoyer_FISA_thankyou&s_s=ce_mj

Only One Constituency
dday, Hullabaloo

We really have to look at this FISA battle in a completely new way in the context of today’s New York Times story.

The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.

At the Pentagon and the military’s Central Command, senior officials gave no indication of any heightened concern about the lapsing of the law. In Congress, staff members with access to updated briefings said they had not been given any specific information about lost intelligence that might endanger national security. And in the telecommunications industry, executives said it was largely business as usual.

Indeed, for all the heated rhetoric in Washington about the government’s wiretapping powers, the debate over what a new surveillance law should look like has little to do with the present or the future and almost everything to do with the past.

We all knew that the intelligence leadership was fudging the truth about how they needed unlimited surveillance powers or else we’d all be strangled by Al Qaeda and the Symbionese Liberation Army while walking through Central Park. The FISA law, which has been revised over 50 times since its inception in 1978, is prefectly capable to handle any intelligence gathering of overseas threats while at least building in some basic judicial review to ensure compliance and civil liberties protections under the Fourth Amendment. What’s been assumed is that the phone companies were demanding amnesty for going along with Bush Administration requests to circumvent FISA before and after 9/11. In the wake of this article, along with the news that Republicans are all grumbly that the telecoms aren’t showering them with cash for helping their cause, you can only conclude that the phone companies really don’t care whether they’re getting amnesty or not. And they really shouldn’t. The executive branch has proven pretty adept at shielding them from prosecution by invoking the state secrets privilege, and the courts have been extremely deferential in waiving cases due to lack of standing. Even if cases passed through the initial stages, it’s simply unlikely that the phone companies would ever be successfully sued, and even more remote that they would have to offer financial restitution. They’re simply not concerned about it.

So if the intelligence community doesn’t care about this, and the phone company executives don’t care about this, there’s only one constituency for which this legislation is designed. And that’s the Bush Administration itself. As Glenn Greenwald noted the other day, it’s not like this is even well hidden.

In his Press Conference yesterday, Commander-in-Chief George W. Bush candidly explained why he was so eager to have Congress grant amnesty to telecoms:

“Allowing the lawsuits to proceed could aid our enemies, because the litigation process could lead to the disclosure of information about how we conduct surveillance.” […]

Bush is finally being candid about the real reason the administration is so desperate to have these surveillance lawsuits dismissed. It’s because those lawsuits are the absolute last hope for ever learning what the administration did when they spied on Americans for years in violation of the law. Dismissal via amnesty would ensure that their spying behavior stays permanently concealed, buried forever, and as importantly, that no court ever rules on the legality of what they did. Isn’t it striking how that implication of telecom amnesty is never discussed, and how little interest it generates among journalists — whose role, theoretically, is to uncover secret government actions?

That’s all this is about. The telecoms don’t want the amnesty. The overriding goal is to shut down these lawsuits and, most important, eliminate the discovery phase so that the full extent of Administration lawbreaking is permanently hidden. This is about burying the evidence, as every single action by the White House since the Democratic takeover of Congress has been. Bush may have a soft spot in his heart for his corporate buddies, but he’s really not interested in indemnifying them.

He’s interested in immunity for himself.

As the Democratic leadership in the Congress floats trial balloons about capitulating on this bill, it’s important to keep this end goal in mind. Official Washington really doesn’t want to reveal a lot of its secrets. Immunity has a certain pull for the Democrats as well, particularly those who were briefed about the program, even in part. They either made no objection or failed to ask the proper questions or in some way became complicit to this lawbreaking that has occurred for almost SEVEN YEARS now, and if the truth ever came out, my guess is that nobody would come out looking so noble.

I’m sure this is what’s being discussed in back channels all over Washington. There aren’t any lobbyists pushing for this, no citizens groups, no grassroots organizations. This is about the Village, mostly from inside the White House but really the entire structure of elites, trying to put up walls around itself. There is a powerful institutional urge to conceal. ++

The “liberal” position on the Surveillance State
Glenn Greenwald
Sunday March 2, 2008

[emphasis added from the original]

It’s periodically worthwhile to take note of just how far to the Right our political establishment has shifted over the last couple of decades, and few issues reveal that shift as clearly as the debate over warrantless government spying. The absolute most “liberal” viewpoint that can be expressed is that the FISA court is a wonderful and important safeguard on civil liberties and that it strikes the perfect balance between freedom and security.

But for decades, the FISA court — for obvious reasons — was considered to be one of the great threats to civil liberties, the very antithesis of how an open, democratic system of government ought to function. The FISA court was long the symbol of how severe are the incursions we’ve allowed into basic civil liberties and open government.

The FISC is a classically Kafka-esque court that operates in total secrecy. Only the Government, and nobody else, is permitted to attend, participate, and make arguments. Only the Government is permitted to access or know about the decisions issued by that court. Rather than the judges being assigned randomly and therefore fairly, they are hand-picked by the Chief Justice (who has been a GOP-appointee since FISA was enacted) and are uniformly the types of judges who evince great deference to the Government. As a result, the FISA court has been notorious for decades for mindlessly rubber-stamping every single Government request to eavesdrop on whomever they want. Just look at this chart (h/t Arthur Silber) for the full, absurd picture.

Yet now, embracing this secret, one-sided, slavishly pro-government court defines the outermost liberal or “pro-civil-liberty” view permitted in our public discourse. And indeed, as reports of imminent (and entirely predictable) House Democratic capitulation on the FISA bill emerge, the FISA court is now actually deemed by the establishment to be too far to the Left — too much of a restraint on our increasingly omnipotent surveillance state. Anyone who believes that we should at the very least have those extremely minimal — really just symbolic — limitations on our Government’s ability to spy on us in secret is now a far Leftist.

But it was not always so. When FISA was first unveiled at the height of the Cold War, it was publicly supported by what a May 23, 1977, pro-FISA Washington Post Editorial described as “leaders of the intelligence community and Congress.” Upon passage of FISA, a 1978 World News Digest article reported (via LEXIS): “All of the U.S. intelligence agencies [including the CIA and NSA] were on record in favor of the final bill.” And in the wake of revelations of decades of eavesdropping abuses, FISA was supported both by the Carter and Ford administrations. It passed the Senate by voice vote.

But opposition to FISA — in many civil libertarian and even conservative circles — was fierce, not on the ground that it imposed too many restrictions on Government eavesdropping but on the opposite ground: that FISA gave legal sanction to sweeping, excessive, unchecked government power to spy on Americans. Here is what William Safire wrote on June 26, 1978 in his New York Times column opposing FISA, largely on the grounds that by requiring phone companies to cooperate with government spying, FISA transformed the telecom industry into an arm of the police state:

To prevent Presidents from listening in to political opponents in the guise of protecting national security, the new Foreign Intelligence Surveillance Act has been proposed.

Predictably, opponents of warrantless wiretapping cheered; the act seem to require a court warrant before tapping can begin. But nobody is reading the fine print, which adds up to the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.
….

Conservatives like to assist law enforcement, and to curtail espionage; we don not like to make it harder for “our side.” But this natural inclination to help the law must be out-weighed by a responsibility to protect the law-abiding individual from the power of government to intrude. And this bill would turn every telephone instrument in every home into a suspected household spy.

Huey Long once said that if fascism ever came to America, it would come in Democratic form; in this bill, Big Brother is on the way, and he is cloaked in the mantle of civil liberties.

Even more revealingly, the telecoms themselves — now the most eager co-conspirators in broader government surveillance powers — were back then among the most vocal opponents of FISA, as they objected to the provisions which required them to participate in Government spying and thus forced them to violate the privacy rights of their own customers. From a June 27, 1978 Washington Post article headlined: “AT&T Hits Wider Role in Wiretaps; Ma Bell Shuns Wider Wiretap Role”:

Ma Bell could become simply a slave for Big Brother under a little noted section of important foreign intelligence surveillance legislation being considered by Congress.

At issue is basic privacy of telephone communications. A business and service for which American Telephone & Telegraph Co. has had a virtual nationwide monopoly over the past century.

Despite cases in recent years that have involved sometimes illegal telephone wiretapping, AT&T long has emphasized privacy as “a basic concept” of its business.

“We believe our customers have an inherent right to use the telephone with the same privacy they enjoy when talking face to face,” states company policy. . . .

In the wake of Watergate, it has been difficult to find company employees who would violate AT&T policy. And some members of Congress have been convinced that telephone companies should be ordered to play a more active role.

As a result, provisions have been added to the proposed Foreign Intelligence Surveillance Act that would allow courts and federal officials to require that AT&T become the wiretapper of the future.

(FISA, and its successor Protect America Act, both require telecoms to comply with government requests to allow surveillance where there is a requisite court order or government certification of legality, which is why the claim that telecoms won’t cooperate without retroactive immunity is so deceitful).

Or consider the role which the Washington Post Editorial Board — currently one of the most vocal advocates of greater surveillance state powers and telecom amnesty — used to play in these debates, from a September 14, 1978 Editorial urging the passage of FISA:

The disclosures in recent years of the activities of the FBI demonstrate the danger of leaving such unbridled discretion in the executive branch. While some of the wiretaps, mail covers and burglaries that were undertaken against American citizens and organizations in the name of national security had legitimate goals, many clearly did not. Some were undertaken solely because a high official wanted to know about the personal life of a particular individual or because he was upset by a particular news story.

The proposed legislation would put a stop to abuses of that kind without hampering legitimate national security investigations. It would simply put an impartial arbitrator — in the person of a judge — between every citizen’s privacy and the desire of the government to penetrate it. That would not be a new role for federal judges, they served constantly as buffers between the government and the individual. But it would provide a new kind of protection that events of the recent past have shown is sorely needed.

Back then, the premise that unchecked presidential spying would lead to massive abuses — as it did for decades — was just a given, something beyond the realm of what could be reasonably debated. Now, only far Left partisans worry about such silly things.

Even back then, of course, there were the hysterical fear-mongerers who argued that we would all be subjugated and slaughtered by The Terrorists [strikethrough] The Communists if we imposed oversight on presidential spying, but — unlike today, when that mentality dominates our political establishment — it was, back then, a small and irrelevant fringe. From an April 17, 1978 Associated Press report:

The key committee vote was on an amendment offered by Rep. Robert McClory’s belief that the president has inherent constitutional powers to authorize foreign intelligence surveillance and that the courts should not become involved in this areas.

McClory proposed to grant the attorney general and the president’s national security advisor the power to sign surveillance certificates which would authorize wiretaps, eavesdroppings or the like. If an American citizen was involved in the probe, the president’s authorization would also be required.

This approach was turned down on a 6 to 3 vote. Most committee members said they preferred a plan setting up a rotating board of federal judges to approve surveillance activities.

The committee also rejected McClory’s suggestions that authorizations be required for cases involving U.S. citizens or persons with legal status in the United States. The committee decided that clearance must be sought in all cases where surveillance is contemplated.

Back then — with a relentless, ideologically extreme Evil Empire threatening our very existence and our freedoms — GOP fear-mongering was brushed aside. The political establishment overwhelmingly concluded that warrantless eavesdropping presented intolerable dangers, and many believed that FISA’s “safeguards” were actually woefully inadequate. Telecoms lobbied on behalf of their customers’ privacy rights and against being drawn into government surveillance. Editorial boards were almost unanimously on the side of greater oversight on presidential spying.

That all seems so quaint. The mindset which back then defined the radical, pro-surveillance right-wing fringe has now become the sweet spot of our political establishment. The GOP fear-mongering that back then was laughed away today dominates our discourse and shapes our laws. The secret FISA court which back then was viewed even by some conservatives as an extreme threat to civil liberties is now the outermost liberal viewpoint, one that is about to be ejected altogether by the Democratic Congress from the mainstream spectrum. The political establishment today knows only one viewpoint: literally no limits are tolerable on the power of the loving, protective Surveillance State. ++

Why Immunity Matters
Dan Froomkin,Washington Post
Monday, March 3, 2008

When he’s talking extemporaneously, President Bush’s rhetoric on the issue of retroactive immunity for telecommunications companies that cooperated with his warrantless wiretapping program tends toward the simplistic and argumentative.

“We want to know who’s calling who,” he said at last week’s press conference, emphasizing his words by thumping the lectern. “We need to know in order to protect the people.”

No one, of course, is arguing the contrary. The debate is over how to go about it. And the major sticking point in the current congressional tussle over surveillance legislation is about immunity: Whether the telephone and Internet companies that for years let the government spy on their customers without a warrant should be protected from civil lawsuits alleging that they violated federal law in doing so.

And indeed, beyond the hyperbole, the Bush administration is articulating a more measured, three-part argument for immunity, based on concerns about fairness, secrecy and future cooperation.

It just so happens that all three parts of this argument are flawed.

The Three Reasons

Bush himself laid out the three reasons immunity is non-negotiable in some unusually specific remarks last Monday:

“One, it’s not fair. Our government told them that their participation was necessary, and it was — and still is — and that what we had asked them to do was legal. And now they’re getting sued for billions of dollars — and it’s not fair, and it will create doubt amongst private sector folks who we need to help protect us,” he said.

“Secondly, such lawsuits would require disclosure of information, which will make it harder to protect the country. You can imagine when people start defending themselves, they’re going to be asked all kinds of questions about tactics used. Makes absolutely no sense to give the enemy more knowledge about what the United States is doing to protect the American people.

“Finally, it’ll make it harder to convince companies to participate in the future. I mean, if you’ve done something that you think is perfectly legal and all of a sudden you’re facing billions of dollars of lawsuits, it’s going to be hard to provide — with credibility — assurances that we can go forward.”

Let’s take them one at a time, in order.

On Fairness

Bush on Thursday argued that the telecommunications companies shouldn’t be punished for patriotically carrying out legal orders. And he characterized the lawsuits as being the product of “class-action plaintiffs attorneys, [who] you know — I don’t want to try to get inside their head; I suspect they see, you know, a financial gravy train.”

The Washington Post put Bush’s claim in context on Friday:

“Two nonprofit groups are overseeing [the five coordinated, class-action lawsuits pending against the phone companies]: the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union of Illinois.” The Post also noted that “substantial damages would be awarded only if courts rule that they participated in illegal surveillance affecting millions of people, not just communications involving terrorism suspects overseas.”

Even if the orders were illegal and the telecoms broke the law, however, is this really their battle? At Tuesday’s briefing, an anonymous senior Justice Department official argued that they shouldn’t be caught in the middle of a separation-of-powers argument:

“[T]he issue, though, is whether in this heated disagreement between the President and some members of Congress about the scope of people’s powers under the Constitution — the scope of the President’s national security powers, the ability of Congress to pass certain statutes — whether private parties are going to be the way to play that out, and essentially, while our intelligence capabilities continue to degrade, is that how we’re going to settle those issues, many of which have gone on for over 200 years?”

Indeed: Why hasn’t this issue been explored elsewhere — say in congressional hearings, or criminal cases? The short answer: A lot of the same Democrats who would have called these hearings timorously acquiesced to the program when they were informed about it in secret briefings years ago. So they’ve been co-opted. And Bush’s own Department of Justice isn’t going to sue itself.

As a result, the telecom lawsuits are the only remaining avenue the public has — at least until the next administration to find out what was done in their name. And immunity would be the final touch to the administration’s stone wall.

On Secrecy

Terrorists everywhere had plenty of reason to believe that the United States was trying to spy on their electronic communications long before the New York Times broke the story of Bush’s warrantless wiretapping program in December 2005.

What was new about the program was not some sort of tactical or technological breakthrough that the terrorists could overcome once alerted to its existence. What was new about the program was that it was arguably in violation of the Foreign Intelligence Surveillance Act, which forbids any form of domestic wiretapping without a warrant.

Whether the government was listening in on their calls legally or not was not material to the terrorists — but it’s hugely relevant to any American who cares about the rule of law.

So what is Bush so worried about? Yes, information about how, when and against whom the wiretaps were carried out could potentially help terrorists to more effectively cover their tracks — but the courts have a proven record of being able to keep such information secret, even while allowing a trial on the overarching issues to proceed.

As Dan Eggen and Ellen Nakashima write in Sunday’s Washington Post:

“If the cases are allowed to proceed, plaintiffs’ attorneys say, the courts could review, in secret if necessary, any government authorizations for the surveillance. The process also might force the disclosure of government memos, contracts and other documents to a judge, outlining the legal reasoning behind the warrantless wiretapping program.

“Perhaps most important, disclosures in the lawsuits could clarify the scope of the government’s surveillance and establish whether, as the plaintiffs allege, it involved the massive interception of purely domestic communications with the help of the nation’s largest providers. . . .

“‘I think the administration would be very loath for folks to realize that ordinary people were being surveilled,’ said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which brought the lead lawsuit, against AT&T.”

Given Bush’s track record at trying to keep information that would embarrass him from the public, it’s reasonable to suspect that the administration’s main goal here is not to keep the program secret from terrorists — but to keep it secret from us.

On Future Cooperation

Bush has been particularly insistent that failure to grant retroactive immunity would have grave consequences going forward. Here’s what he told reporters on his way back from Africa on Feb. 21:

“If we do not give liability protection to those who are helping us, they won’t help us. And if they don’t help us, there will be no program. And if there’s no program, America is more vulnerable.”

But why would lawsuits over past actions have any effect on telecoms following lawful directives from this point forward?

Here’s how that senior Justice Department official explained it at a White House briefing last week:

“We have to work with them. And, yes, we can compel them to assist us through various court orders or directives. But I know as a prosecutor working criminal cases, trying to get telephone records, there’s some companies that work well with you and you get them in a day, and you can — that will help you to run down the bad guy more quickly. Others will take the full two weeks. And so there’s cooperation, and there’s cooperation.

“Also, keep in mind that, yes, the providers, if they want to, they can litigate everything we give them. They have the right under the PAA — the Protect America Act — to go ahead and challenge these directives, and that’s within their right to do so. And at the end of the day, we might prevail — we will prevail because we have the authority to do it. But during the time that that’s being litigated, the surveillance we’re asking them to do is not happening. . . .

“So don’t underestimate — because there’s no immunity, the providers are understandably concerned. They’ve got shareholders, they’ve got fiduciary duties to their shareholders, they’ve got to protect them. And one thing the general counsels do is then they try to minimize their risk. And they do that by, sometimes, litigating things more just to make sure that they’ve got a court order to cover them at every step of the way. And that will really slow us down.”

But the telecoms can’t possibly be worried about prospective immunity for following lawful orders — that’s already part of the agreed-upon legislation.

So are they actually telling the government: Unless you get us off the hook for billions in potential damages based on our past actions, we won’t follow the law — or we’ll do so, but only kicking and screaming. That doesn’t sound like a legitimate reason to help them out. In fact, it sounds like extortion.

Or are they simply saying that without retroactive immunity, they’ll feel a greater need to be absolutely sure that what they’re doing is legal? If that’s the case, that sounds like a good thing. Any company being asked to do something by the government that they have plausible reason to believe is illegal should push back. Otherwise, there are no checks and balances at work. We call that a police state.

Another possibility, I suppose, is that the telecoms are balking about doing things that we don’t even know about — and are worried that they could be sued once we find out.

At any rate, none of these points argue for retroactive immunity.

The Latest

Eggen and Nakashima’s piece in Sunday’s Post points out:

“A prime goal in the litigation is to find out who the decision-makers were, said Don Migliori, a partner with Motley Rice in Providence, R.I., a plaintiffs’ attorney who is working on the lawsuit against Verizon. The plaintiffs intend to request not just government documents but also e-mails, including who contacted whom and when. . . .

“Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?

“Answers to those questions, he said, might reveal that ‘everybody in the country’ has had their phone calls ‘combed through, and lots of people will be outraged.’ …

“If the AT&T case is allowed to proceed, for example, the plaintiffs will ask a judge to consider documents provided by a former AT&T technician, Mark Klein, that suggest a massive effort by the National Security Agency to tap into the backbone of the Internet to retrieve millions of e-mails and other exclusively domestic communications.”

Eric Lichtblau writes in the New York Times:

“The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.”

Washington Monthly blogger Kevin Drum wonders if one reason the telecoms themselves aren’t fighting all that hard on behalf of this legislation might be because they’ve all got indemnity agreements that would force the federal government to pay any legal judgments awarded against them.

Studs Terkel, Quentin Young, Barbara Flynn Currie and James Montgomery, plaintiffs in one of the lawsuits, write in a Chicago Tribune op-ed:

“More than six years after the terrorist attacks of Sept. 11, 2001, the Bush administration remains committed to using the specter of those attacks (and other possible new attacks) as justification for reckless, unlawful and unconstitutional behavior. This pattern can be seen most clearly in the current effort in Congress to grant the administration unchecked power to spy on Americans and to forgive in advance large corporate entities for illegal behavior. . . .

“Congress should not deny us our day in court. The companies broke the law, and we believe they must be held accountable. . . .

“If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?”

Signs of a Cave-In

The shocking Feb. 14 House rebellion on the surveillance issue was actually just a delaying tactic. All the House did was defy a White House deadline. Now signs increasingly suggest that congressional Democrats intend to go belly up again — as usual.

Jason DeParle writes in the New York Times:

“The chairman of the House Intelligence Committee hinted Sunday that a battle over an expired eavesdropping law might be moving toward a conclusion that gave phone companies the retroactive legal protections long sought by President Bush.

“The chairman, Representative Silvestre Reyes, Democrat of Texas, said in an interview on CNN that the committee had been talking to the companies ‘because if we’re going to give them blanket immunity, we want to know and understand what it is we’re giving immunity for.’

“Mr. Reyes did not specify what provisions a House bill might contain. But his use of the words ‘blanket immunity’ suggested that he might be moving toward a Senate bill, backed by Mr. Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks.

“‘I have an open mind about that,’ Mr. Reyes said.”

Greg Miller wrote in Sunday’s Los Angeles Times that House Democrats are considering a plan to set up two separate votes, splitting the immunity issue from the less controversial measures to give the government broad new eavesdropping authorities.

“Officials from both sides acknowledged that there are probably enough votes in the House to pass the measure protecting telephone companies. But splitting the bill would give Democrats who oppose the immunity provision political cover for voting in favor of the broader legislation.”

Glenn Greenwald blogs for Salon:

“The signs are unmistakably clear that what was always inevitable — full compliance by the House Democratic leadership with Bush’s demands on warrantless eavesdropping and telecom amnesty — is now imminent. . . .

“This is, of course, everything except surprising. No rational person who has watched Congressional Democrats since they took over Congress could possibly have expected them to do anything but what they always do: namely, whatever they’re told to do by the White House.”

Greenwald’s only question:

“If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. . . .

“And now, after picking this fight and letting it rage for weeks, they are going to do what they always do — just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President.” ++

Mukasey’s Paradox
When you think about it, his manipulations are a beautiful, twisted thing.
Jonathan Turley, LA Times
March 4, 2008

The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey’s action.

In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.

Such a perfect paradox is no easy task. Most attempts fall apart because of some element of logical consistency. The closest example to Mukasey’s Paradox is the Grandfather Paradox: If you go back in time and kill your grandfather before he meets your grandmother, you would not be conceived and therefore you could not go back to kill your grandfather. That one can play real tricks with your head.

Mukasey’s Paradox appears designed to play tricks with Congress. Its origins date back to Mukasey’s confirmation hearings, when he first denied knowing what waterboarding was and then (when it was defined for him) refused to recognize it as torture. In fact, it is not only a crime under U.S. law, it is a well-defined war crime under international law.

The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States — an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey’s confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.

Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.

However, this is only half of Mukasey’s Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.

Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt — even if the president’s assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush’s assertions of privilege in this case would be upheld.

When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey’s Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act — and that the president could not be charged criminally because lawyers told him he could do it.

Now some have pointed to other paradoxes in Mukasey’s tenure. There is, for instance, the “paradox” that his confirmation was saved by Democrats — who thereby allowed the president to avoid a confrontation on torture. There is the “paradox” of Mukasey insisting that courts should not investigate the Justice Department’s failure to preserve the CIA torture tapes because the Justice Department should be allowed to investigate its own failure to previously investigate.

Yet these are not real paradoxes — they’re merely political ironies. A paradox is a statement that seems true but yields a contradiction or a dual truth. When reduced to its purest form, Mukasey’s Paradox is that government officials cannot violate the law — but that because executive privilege is also a law, it’s sometimes necessary to violate the law in order to uphold the law.

Mukasey’s Paradox will now join other paradoxes such as Zeno’s Paradox. Indeed, members of Congress already use a variation of Zeno’s Paradox to explain their lack of action on civil liberties, torture and Iraq. They seem to be always working toward “change” without actual change occurring. The answer is found in Zeno’s Paradox: You will never reach Point B from Point A as you must always get halfway there, and half of the half, and half of that half, and so on.

Mukasey’s Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. Yet there is always hope.

Consider that Mukasey took an oath under which he swore to uphold the laws of this country — even if the violator is the president of the United States or his aides. That oath means that all laws must be upheld without exception. Except, according to his interpretation, that executive power is a form of constitutional law that creates exceptions to the enforcement of laws.

But there’s something known as the Exception Paradox, which goes as follows: If there is an exception to every rule, then every rule must have at least one exception, including the rule that there must be an exception to every rule. Thus, perhaps this is a rule without exception, and the president cannot order criminal acts.

But that brings us back to Mukasey’s Paradox. Even if there is no exception to the president ordering crimes, there is no crime because the president ordered it. Perfection. ++

Jonathan Turley is a professor of law at George Washington University.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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