http://www.salon.com/opinion/greenwald/2007/10/18/rockefeller/print.html
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Glenn Greenwald
Oct. 18, 2007 | (updated below)
(*****UPDATE II -- DODD TO PLACE A SENATE "HOLD" ON TELECOM AMNESTY BILL)
(Update III)
The fact that this was completely predictable does not make it any less reprehensible:
Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources. . . .Let's just describe very factually and dispassionately what has happened here. Congress -- led by Senators, such as Jay Rockefeller, who have received huge payments from the telecom industry, and by privatized intelligence pioneer Mike McConnell, former Chairman of the secretive intelligence industry association that has been demanding telecom amnesty -- is going to intervene directly in the pending lawsuits against AT&T and other telecoms and declare them the winners on the ground that they did nothing wrong. Because of their vast ties to the telecoms, neither Rockefeller nor McConnell could ever appropriately serve as an actual judge in those lawsuits.The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.
Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.
Yet here they are, meeting and reviewing secret documents and deciding amongst themselves to end all pending lawsuits in favor of their benefactors -- AT&T, Verizon and others. Let me quote again from that 1998 Foreign Affairs essay by Thomas Carothers helpfully outlining the steps required to install the "rule of law" in third-world, pre-democracy countries:
Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.The question of whether the telecoms acted in "good faith" in allowing warrantless government spying on their customers is already pending before a court of law. In fact, that is one of the central issues in the current lawsuits -- one that AT&T has already lost in a federal court.
Yet that is the issue that Jay Rockefeller and Mike McConnell -- operating in secret -- are taking away from the courts by passing a law declaring the telecoms to have won ("Senators this week began reviewing classified documents . . . and came away from that early review convinced that the companies had 'acted in good faith' in cooperating with what they believed was a legal and presidentially authorized program"). They are directly interfering in these lawsuits and issuing a "ruling" in favor of AT&T and other telecoms that is exactly the opposite of the one an actual court of law has already issued.
Just read what Bush-41-appointed Federal Judge Vaughn Walker -- operating out in the open, in an actual court of law, with both sides present and in accordance with due process -- ruled when rejecting AT&T's argument that they are entitled to have the case dismissed because they operated in "good faith" [Decision (.pdf) at p. 68]:
Just think about what is really happening here. AT&T's customers sued them for violating their privacy in violation of long-standing federal laws and for violating their Fourth Amendment rights. Even with the most expensive armies of lawyers possible, AT&T and other telecoms are losing in a court of law. The federal judge presiding over the case ruled against them -- ruled that the law is so clear they could not possibly have believed that what they did was legal -- and most observers, having heard the Oral Argument on appeal, predicted that they will lose in the Court of Appeals, too.
So AT&T and other telecoms went to Washington and -- led by Bush 41 Attorney General (and now Verizon General Counsel) William Barr, and in cooperation with their former colleague, Mike McConnell -- began paying former government officials such as Dan Coats and Jamie Gorelick to convince political officials to whom they give money, such as Jay Rockefeller, to pass a law declaring them the victors in these lawsuits and be relieved of all liability -- all based on assertions that a court of law has already rejected. They are literally buying a judicial victory in Congress -- just like Carothers warned that third-world countries must avoid if they want to become functioning democracies under the "rule of law" ("Above all, government officials must refrain from interfering with judicial decision-making").
And in the process -- for good measure -- they have ensured that there will never be any judicial ruling as to whether our Government and the telecom industry broke the law in how they spied on us for years without warrants. They have placed what they did literally beyond the reach of any law or judicial determination. And they accomplished all of that by paying enough officials in Washington to obtain those incomparably corrupt gifts. That's just factually, objectively, what has happened here.
To describe this is to illustrate how low we have fallen over the last six years, how illusory the concept of "the rule of law" now is in Washington. As Carothers put it in his solemn lecture to the Third World:
The primary obstacles to such reform are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure.Americans can understand instinctively -- if the argument were really made -- that it is completely corrupt for corporations which break the law and are sued to go to Congress and get a law passed declaring that they did nothing wrong. That is not an option available to most people if they break the law and/or are sued. But our "entrenched elites" defend it by spouting rank, fear-mongering tripe such as this, and thus, the intense erosion of our country's core political principles continues unabated.
While the President may think that it's right to offer immunity to those who break the law and violate the right to privacy of thousands of law-abiding Americans, I want to assure him it is not a value we have in common and I hope the same can be said of my fellow Democrats in the Senate.The vow to "do what [he] can" to stop amnesty is interesting. Big Tent Democrat suggests he lead a filibuster to stop it (h/t Atrios), but I doubt, given Rockefeller's support, that they could get anywhere near the 40 votes necessary to sustain that. Dodd could, however, place a "hold" on any bill containing amnesty and prevent it from reaching the floor for a vote: "Senate tradition allows any senator to keep a piece of legislation from reaching the Senate floor by placing a hold on the bill." That is what Sen. Wyden did previously to prevent a vote on an anti-net-neutrality bill.For too long we have failed to respect the rule of law and failed to protect our fundamental civil liberties. I will do what I can to see to it that no telecommunications giant that was complicit in this Administration's assault on the Constitution is given a get-out-of-jail-free card.
Dodd's emphasis in his campaign on constitutional issues -- along with his excellent voting record this year -- has generated significant positive feelings towards his campaign. But demonstrating real leadership on this incomparably important issue would almost certainly generate real, tangible support for his campaign in many circles.
Telecom amnesty implicates not only all of the issues raised by warrantless surveillance and the rule of law, but really calls into question the basic fairness of our entire political system, i.e, whether the wealthiest and most powerful corporations in Washington can literally buy their way out of lawbreaking. Anyone who boldly impedes what would be this bipartisan travesty -- and a "hold" on an issue of this magnitude would, in the context of Senate customs, be very bold -- is someone who will have demonstrated genuine leadership on a truly critical issue. There has been precious little of that thus far in the presidential race.
* * * * *
Amos Hochstein is the Policy Director for the Dodd Campaign. He can be reached at (202) 737-3633. It may be very helpful to have him hear from those who have appreciated Sen. Dodd's outspokenness thus far on constitutional issues to understand what Sen. Dodd's leadership on this issue here would mean. It is vital to have someone in the Senate take an emphatic stance against what would be the true atrocity of telecom amnesty (Atrios adds some insightful thoughts about the strategic rationale behind a Dodd hold).
UPDATE II: Asserting the type of strong leadership that has been missing almost entirely from the Democratic presidential candidates and the party's leadership, Chris Dodd just announced that he will place a Senate "hold" on any FISA bill that contains telecom amnesty:
The Military Commissions Act. Warrantless wiretapping. Shredding of Habeas Corpus. Torture. Extraordinary Rendition. Secret Prisons.A "hold" is not insurmountable, but it creates significant procedural difficulties for a Senate trying to quietly bestow amnesty onto lawbreaking telecoms. As Greg Sargent explained in his exclusive report on this:No more.
I have decided to place a "hold" on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President's assault on the Constitution by illegally providing personal information on their customers without judicial authorization.
I said that I would do everything I could to stop this bill from passing, and I have.
It's about delivering results -- and as I've said before, the FIRST thing I will do after being sworn into office is restore the Constitution. But we shouldn't have to wait until then to prevent the further erosion of our country's most treasured document. That's why I am stopping this bill today.
By doing this, Dodd can effectively hold up the telecom immunity bill, because bills are supposed to have unanimous consent in the Senate before going forward. One Senator can make it very difficult to bring a bill to the floor by objecting to allowing it to go to a vote.More importantly, the "hold" will force the issue into the public spotlight where it belongs, enabling Dodd to make the case to Americans about why these corporations, working in concert with George Bush, should not be allowed to buy their way out of lawbreaking.
The idea for a "hold" was literally created out of nothing just this morning by blogs and others, and Dodd was chosen as the most likely target because -- as Kos wrote just moments ago -- he is the only one who has been demonstrating this sort of leadership, and "the only thing that speaks is action." Having Dodd step forward like this is a huge victory for those who believe in our basic Constitutional liberties and the rule of law. Those of you who called Dodd's campaign today -- and you did so in enormous numbers -- caused this to happen.
Dodd stepped up and took a risk and did exactly what we asked. You can express your support here, and reward his superb actions with a contribution here. That is not intended as an endorsement of the campaign, etc., but is definitely encouragement to support Dodd's actions here.
UPDATE III: Perhaps Dodd's announcement will spark some mini-revolt. According to The Hill:
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Thursday condemned Intelligence Committee Democrats for brokering a deal with the White House that would provide retroactive immunity for telephone companies that assisted the Bush administration's controversial warrantless wiretapping program. . . . .In completely unsurprising (though still repugnant) news, the same article reported: "Not all Democrats on the Judiciary Committee appeared to share Leahy's concerns. Sen. Dianne Feinstein (D-Calif.), who sits on both the Judiciary and Intelligence panels, signaled she was likely to support the bipartisan approach."Leahy's remarks signal that a bipartisan accord to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), reached Wednesday by the Intelligence panel's leaders and the White House, could divide Democrats and hit a roadblock on his panel as well. The Intelligence Committee marks up the bill Thursday afternoon, after which it will be referred to Judiciary, where more Democrats have openly opposed retroactive immunity language.
But for now, the focus should remain on Dodd and his invoking of what is considered an extreme Senatorial weapon in order to stop an extreme Senatorial bill. You can express your support here, and reward his superb actions with a contribution here.
-- Glenn Greenwald
