Telecom amnesty update

Various developments showing progress in the effort to derail telecom amnesty.

Published October 27, 2007 12:32PM (EDT)

(updated below)

Several developments over the past few days demonstrate real progress in the effort to stop telecom amnesty. This Newsweek article by Michael Isikoff and Mark Hosenball details the efforts triggered by bloggers, along with MoveOn, to stop the bill, led by Chris Dodd:

A White House campaign to win quick passage of a major surveillance bill has hit a new snag in recent days: four Democratic presidential candidates have signaled their intention to oppose the measure as it is currently written.

Sen. Chris Dodd of Connecticut took the lead last week when he vowed to filibuster a version of the bill overwhelmingly approved by the Senate Intelligence Committee. . . . In a statement blasting the program as "unconscionable," Dodd said he would "do everything in my power to stop Congress from shielding this president's agenda of secrecy, deception, and blatant unlawfulness."

No sooner had Dodd issued his statement than -- along with leading liberal bloggers such as DailyKos -- launched their own campaign to pressure other Democratic presidential candidates to commit to the same position. In mass e-mails, MoveOn urged its supporters to call other Democratic senators running for president and encourage them to back a filibuster of the bill. Dodd's campaign reported $200,000 in new donations in the first 36 hours after he issued his filibuster threat.

By Wednesday, at least two other candidates -- Sens. Barack Obama and Joe Biden -- had joined with Dodd in pledging to oppose any surveillance bill that includes immunity for the telecoms. Sen. Hillary Clinton, the Democratic front runner, released a more equivocal statement, saying she was "troubled by the concerns" raised about the bill and pledging to "study it very hard." The statement continued: "As matters stand now, I could not support it and I would support a filibuster absent additional information coming forward that would convince me differently."

That all demonstrates emerging and increasingly effective anti-amnesty positions from everyone in the Democratic field -- except one. As Matt Stoller noted, even the New York Daily News, in the course of criticizing efforts to derail telecom amnesty, mocked Clinton for her nonsensical statement about whether she would filibuster.

Demonstrating the increasing significance of these efforts, Chris Dodd has now been invited to appear this Sunday on Meet the Press, where he will be the only guest for the entire hour. His stance in defending the Constitution generally, and his specific efforts to stop telecom amnesty and warrantless eavesdropping, will undoubtedly be a major topic (see Dodd's superb Senate floor speech this week on these issues here).

The letter-petition to Harry Reid and the Senate Judiciary Committee -- co-written and co-signed by several bloggers along with groups such as the ACLU, EFF, MoveOn, Color of Change, Center for National Security Studies and Working Assets -- is here, and I'd encourage you to sign it (here) as but the very first step in the campaign to stop telecom amnesty. Reid is going to be the key target -- and the key problem -- here, as is evident from the quote he gave to Newsweek:

But the maneuvering by the contenders -- and the role played by MoveOn -- also raised concerns among senior Democrats on Capitol Hill that presidential politics might impede efforts to reach a compromise on such a sensitive and important national-security measure. "We need to get things done on this bill," Senate Majority Leader Harry Reid told reporters Tuesday.

That's brilliant. George Bush continuously decrees: "Give me everything I want on this bill or I will veto it." In response, Harry Reid says: "I'm very upset by people trying to delay or stop this because the only thing that matters is that we get a deal." To Reid, apparently, it doesn't matter what the terms are of the deal they reach or how much they give in to the White House. All that matters is that he deliver something to the White House -- like a good boy -- that makes George Bush sufficiently happy to sign. It is possible that Reid means something else -- i.e., that he only wants to ensure that the Senate pass something to send to Bush, regardless of whether it meets all of Bush's demands (including amnesty) -- but only time will tell.

As things stand, the FISA bill is currently in the Senate Judiciary Committee where Chairman Pat Leahy, at least thus far, is reportedly committed to stripping the amnesty provision out of the bill. Having this bill come to the floor without amnesty in it would force the Republicans to offer it as an amendment and would mean they would need 60 votes specifically in favor of amnesty in order to put it back in (because Dodd would filibuster any such amendment).

That is much harder to accomplish than having the bill reach the floor with amnesty already in it and then have to drum up 60 votes for the bill generally. Thus, the key right now is the Senate Judiciary Committee, and Dodd's website is the place to go to find out how to keep up the pressure there, completely with a current whip count of Committee members who are for or against amnesty.

Finally, there seems to be this notion even among members of Congress in their more enlightened moments that amnesty ought to be considered if the White House finally agrees to show them documents -- regarding the "legal justifications" for warrantless eavesdropping and the "rationale" for the telecoms' actions -- which they have been concealing thus far. But this claim makes no sense on multiple levels.

First, as Marty Lederman notes, the White House's willingness to disclose these documents in exchange for promises to vote for amnesty -- i.e., their use of these documents as political leverage -- demonstrates that there is no valid rationale, and never has been, for refusing to turn them over to Congress. Why would Congressional Democrats agree to give up something so extraordinary (telecom immunity) in exchange for the White House's "agreeing" to do what it is required in any event to do -- namely, comply with Congressional oversight demands for these documents?

Secondly, as any litigator will tell you, when you allow one party in possession of all documents voluntarily to show you the ones they want -- while concealing others -- the only picture you get is a distorted, biased and one-sided picture. The only mechanism for actually getting the truth is to compel the White House to turn over all documents, not to have Senators make a pilgrimage to the White House to look at the ones the White House has specially selected for them.

Finally, and most importantly, if it is really true that these magic documents show how innocent and reasonable were the telecoms' actions, then they will win in court. FISA and other statutes already provide immunity for them if they acted in good faith. There is no reason for Congress to put itself in the position of judge in this matter -- there already is a real judge in a real court presiding over these cases.

If the secret documents which Dick Cheney is magnanimously agreeing to share are really as exculpatory as Cheney's good friend Jay Rockefeller claims, then the telecoms will win in court and all will be good in the Republic once again. The better the secret magic documents are for the telecoms, the less is the need for amnesty.

Granting amnesty to telecoms all because Dick Cheney showed Congress a handful of carefully selected documents which he is required to show them anyway is nothing more than an exercise in deceit -- enabling Congressional Democrats to claim that they went along with amnesty only because they "forced" the administration into this meaningless "concession." If Congressional Democrats end up voting for amnesty, nobody should be the slightest bit fooled by what will be their claim that they did so only because they stood firm and "forced" the White House to show them these documents.

* * * * *

Thank you very much to the superb guest-bloggers who filled in for me this week while I made excellent progress towards finishing my book. I read Pam Spaulding, Chris Floyd and Anonymous Liberal on a daily basis and have for some time. I am sure that those of you who hadn't can see why that is, and I encourage you to continue reading them at their blogs. Even in those instances where you don't agree with them, they are always as thought-provoking as they were here this week.

UPDATE: The Senate Intelligence Committee released its report on the FISA bill it marked up, and Marcy Wheeler has a series of post analyzing the explanations from both the majority and the dissenters on each of the key provisions. Marcy's last post is here; scroll down for her series of analyses. I haven't had the opportunity yet to read the Committee's report, but I have read each of Marcy's posts today and the analysis she provides is typically thorough and worthwhile.

By Glenn Greenwald

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