Let's put aside for a moment the policy merits of granting retroactive immunity to the telecom companies (I generally agree with Glenn's take on that), and just consider the raw politics of the issue.
Consider the following "hypothetical."
Suppose a lame duck president with an approval rating of 25 percent were to demand that a Congress controlled by the opposite party pass legislation on behalf of a bunch of large corporations that no one much likes that would absolve those corporations of any liability for past illegal activities they may have participated in at that president's request. Suppose further that the primary purpose and effect of this legislation is to immediately terminate existing court proceedings that threaten to shed some light on the nature and scope of these illegal activities. And finally, suppose that our hypothetical president is unwilling to provide the public or Congress (other than members of one committee) with any specific information regarding the activities that are to be immunized. Indeed, this hypothetical president won't even confirm that the corporations being immunized ever assisted the government at all. Oh, and did I mention that this legislation is intensely unpopular among the political base of the party controlling Congress?
Given these facts, what are the odds that our hypothetical president would be able to convince Congress to give him the legislation he wants?
Had I not lived through the last few months, my answer to this question would be "no chance in hell."
From a purely political standpoint, I find it virtually incomprehensible that Democrats are not tripping over each other to oppose granting immunity to the telecoms. I understand that many Democrats live in constant fear of being labeled "soft on terror," but this issue is easily severable from the issue of surveillance law generally. It has nothing to do with the president's surveillance authorities going forward, and any voter can readily understand that. This is about a president (who is painfully unpopular) asking Congress to do something totally unreasonable (blindly grant sweeping immunity for unspecified illegal conduct) on behalf of huge corporations (whom no one much trusts or likes) who are more than capable of taking care of themselves (they have massive legal budgets and top-notch lawyers). If Democrats in Congress don't think they can present their opposition to such legislation in a way that the public will understand, then they might as well pack up and go home because they're clearly not cut out for this line of work.
Opposition to telecom immunity should be a political no-brainer for Democrats. It is passionately opposed by virtually all left-leaning activists and bloggers (as well as many non-left-leaning folks), and it is hard to see what possible political downside there could be to opposing immunity. Sure, Republicans could try to use such opposition to paint Democrats as weak on terror, but it's not going to be very convincing to anyone ("unless you retroactively immunize AT&T, the terrorists win!").
Moreover, as recent history has shown us again and again, Republicans will accuse Democrats of being soft on terror no matter what they do. It has never much mattered to them what the Democrats' actual positions are (they'll just make stuff up). And let's not forget that Republicans ran on surveillance-related issues in 2006. They rammed FISA legislation through the House and accused those who opposed it (as well as those who didn't) of being soft on terror. And then they got trounced at the polls.
I'm glad that Sen. Dodd has shown some real leadership on this issue (and that others are now following his lead), but I'm frankly shocked that any real leadership was necessary. The political optics (not to mention the merits) of this issue cut so overwhelmingly against the Bush administration that opposition to it should be the default, reflexive position of every Democrat. At the very least, the reflexive position should be that immunity is not on the table until members of Congress know what it is they're being asked to immunize. That's such a simple, clear and easily defensible position that there is really no excuse for saying anything else.
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