[N]o action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.
This would mean that the Attorney General could simply decree in secret (“in a manner consistent with the protection of State secrets”) that any lawbreaking relating to surveillance or other intelligence activities was “intended to protect the United States from a terrorist attack,” and any liability for that lawbreaking, civil or criminal, would thereafter forever be prohibited. It would be absolute, sweeping amnesty for all individuals and entities, in government and in the private sector, who broke the intelligence and surveillance laws after 9/11. Neither Vladimir Putin nor Hugo Chavez have amnesty power of that sort. But that’s what the administration and Mike McConnell are demanding, and it’s what, at least as it pertains to telecoms, wonderful ex-Clinton officials such as the “highly regarded” Jamie Gorelick are working to bring about.
It is not, obviously, a revelation, but this practice of government officials leaving and then being paid to use their contacts to shape legislation on behalf of corporate clients is the sleaziest practice there is in Washington. Can’t Jamie Gorelick find a way to earn a living without engaging in the lowest form of legalized influence-peddling on behalf of law-breaking telecoms which now want a bill which would almost certainly, in effect if not explicitly, also bar any accountability for Bush officials who broke the law when eavesdropping on Americans? (And it is worth remembering here that Qwest, unlike Gorelick’s client, followed the law and refused to comply with the administration’s demands to allow spying on its customers without warrants, even in the face of threats that they would lose government contracts).
It is hard to count the number of high Clinton officials who, like Gorelick, have spent the last six years getting rich selling their contacts and influence by working on behalf of lobbying and other clients to pursue legislation directly at odds with the political beliefs they pretended to have and will, once they are back in power, pretend again to have. Gorelick, needless to say, is an enthusiastic contributor to the Hillary Clinton campaign (as well as to Joe Lieberman’s). She’ll undoubtedly be a leading candidate for Attorney General in the next Clinton administration (perhaps serving along with Clinton supporter and “foreign policy expert” Michael O’Hanlon). Telecom lobbyist Donilon is also a maxed-out Clinton contributor.
It is hard to overstate how much of a priority FISA immunity is for the Bush White House, and for obvious reasons. Ironically, they were actually proposing the same sweeping retroactive immunity language back in September of 2006 when the Republicans controlled both houses of Congress, but they could not get the Congress to pass FISA legislation. With the Democrats in control of Congress, and Democratic Beltway influence-peddlers like Gorelick working with them, their chances of obtaining such legislation are now plainly enhanced, and according to both Risen and Isikoff/Hosenball, they are likely to obtain some form of retroactive immunity now that Democrats control Congress. There are reasons — good reasons — why the current Congress is more popular among Republicans than Democrats.
I believe it is this issue which also sheds significant light on the nomination of Michael Mukasey as Attorney General. In light of the fact that Mukasey is unquestionably independent of the Bush circle with admirers even among some of the strongest critics of the administration, the question naturally arises: why would the Bush administration possibly nominate an independent, basically honest individual as Attorney General?
The answer, in large part, lies with their desire for immunity from past FISA violations and other lawbreaking. As indicated, the legislation McConnell is touting empowers the Attorney General to provide amnesty when, in his sole discretion, he deems it to be warranted. Even Congressional Democrats would be reluctant to vest that amnesty power in Alberto Gonzales.
But their willingness to do so is almost certainly increased by having the administration claim that it now has an Attorney General of Honor and Independence whom Democrats can Trust. At the same time, given Mukasey’s well-established reverence for broad executive power, it is almost certainly the case that he would conclude — as most ideologically similar lawyers of his strain have — that there is at least a good faith legal basis for believing the President had the power to violate FISA and that such violations were undertaken in good faith (to Stop the Terrorists). Amnesty, he would almost certainly conclude, would thus be warranted for all lawbreakers.
They were able to risk an outsider like Mukasey because, with 15 months left in the Bush presidency, there is only so much damage to them he could do, but on the issues that matter — starting with amnesty from past lawbreaking — Mukasey will be a potent instrument. When the administration sent Bill Kristol out to praise the Mukasey nomination the day before it was announced, that was, in essence, one of Kristol’s principal arguments:
I for one don’t know enough about Mukasey’s constitutional views to be sure I’d recommend him for a lifetime Court appointment. Nor would he perhaps be the best pick for AG at the beginning of a term . . . But this is an appointment for the last fifteen months of an administration whose basic policies are set and which has few judges left to appoint.
The most contentious fights over the next year are likely to be on war-on-terror issues. And as Andrew McCarthy (no liberal softy on such matters!) explained on National Review Online, Mukasey is first-rate on these . . . .
Judging also by what Mukasey has written and said outside the courtroom about the Patriot Act and related matters, we can be confident he’ll be effective at making the case before Congress and the public for tough legislation and sound policies on national security issues.
And he’ll be hard to challenge when he does so. Mukasey testifying on behalf of Bush’s FISA legislation will be like Petraeus testifying on the surge. He’ll be an able public spokesman because he can’t be caricatured as a partisan apologist, and the Democrats won’t be able to lay a glove on him.
So my advice is this: conservatives should hold their fire, support the president, enjoy watching Chuck Schumer hoist on his own petard, and get ready for a strong attorney general for the rest of the Bush administration.
The idea of granting blanket retroactive amnesty for private companies and high government officials who repeatedly broke the law in how they spied on Americans is the stuff of tin-pot third-world dictatorships. It is so corrupt and reprehensible that it ought to be beyond the ken of what could even be considered. But with an indescribably (and increasingly) accommodating Democratic Congress, along with Democratic power brokers like Gorelick working in tandem with telecoms and their Republican lobbyists to bring about such legislation, its passage — as both the NYT and Newsweek are reporting — is close to guaranteed. The MoveOn ad was terrible.
UPDATE: I thought the meaning of the last sentence was quite clear, but if enough people fail to understand what was written, the fault, at least partially, sits with the writer. Several commenters on the first page of comments explain the meaning. For those who do not want to look there, the sentence has nothing to do with a critique of the MoveOn ad.