Amnesty Day for Bush and lawbreaking telecoms

The Senate's actions today in permanently protecting Bush officials from clear lawbreaking illustrate how far we've tumbled from the Church Committee of the post-Watergate era.

By Glenn Greenwald
Published February 12, 2008 12:01PM (EST)

(Updated below - Update II - Update III - Update IV - Update V)

The Senate today -- led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus -- will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration's years-long illegal spying programs aimed at Americans. The long, hard efforts by AT&T, Verizon and their all-star, bipartisan cast of lobbyists to grease the wheels of the Senate -- led by former Bush 41 Attorney General William Barr and former Clinton Deputy Attorney General Jamie Gorelick -- are about to pay huge dividends, as such noble efforts invariably do with our political establishment.

It's worth taking a step back and recalling that all of this is the result of the December, 2005 story by the New York Times which first reported that the Bush administration was illegally spying on Americans for many years without warrants of any kind. All sorts of "controversy" erupted from that story. Democrats everywhere expressed dramatic, unbridled outrage, vowing that this would not stand. James Risen and Eric Lichtblau were awarded Pulitzer Prizes for exposing this serious lawbreaking. All sorts of Committees were formed, papers written, speeches given, conferences convened, and editorials published to denounce this extreme abuse of presidential power. This was illegality and corruption at the highest level of government, on the grandest scale, and of the most transparent strain.

What was the outcome of all of that sturm und drang? What were the consequences for the President for having broken the law so deliberately and transparently? Absolutely nothing. To the contrary, the Senate is about to enact a bill which has two simple purposes: (1) to render retroactively legal the President's illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and (2) to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms. In other words, the only steps taken by our political class upon exposure by the NYT of this profound lawbreaking is to endorse it all and then suppress any and all efforts to investigate it and subject it to the rule of law.

To be sure, achieving this took some time. When Bill Frist was running the Senate and Pat Roberts was in charge of the Intelligence Committee, Bush and Cheney couldn't get this done (the same FISA and amnesty bill that the Senate will pass today stalled in the 2006 Senate). They had to wait until the Senate belonged (nominally) to Harry Reid and, more importantly, Jay Rockefeller was installed as Committee Chairman, and then -- and only then -- were they able to push the Senate to bequeath to them and their lawbreaking allies full-scale protection from investigation and immunity from the consequences of their lawbreaking.

That's really the most extraordinary aspect of all of this, if one really thinks about it -- it isn't merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and more brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps -- extraordinary steps -- to protect Bush officials. While still knowing virtually nothing about what they did, they are acting to legalize Bush's illegal spying programs and put an end to all pending investigations and efforts to uncover what happened.

How far we've come -- really: disgracefully tumbled -- from the days of the Church Committee, which aggressively uncovered surveillance abuses and then drafted legislation to outlaw them and prevent them from ever occurring again. It is, of course, precisely those post-Watergate laws which the Bush administration and their telecom conspirators purposely violated, and for which they are about to receive permanent, lawless protection.

What Harry Reid's Senate is about to do today would be tantamount to the Church Committee -- after discovering the decades of abuses of eavesdropping powers by various administrations -- proceeding in response to write legislation to legalize unchecked surveillance, bar any subjects of the illegal eavesdropping from obtaining remedies in court, and then pass a bill with no purpose other than to provide retroactive immunity for the surveillance lawbreakers. That would be an absurd and incomparably corrupt nonsequitur, but that is precisely what Harry Reid's Senate -- in response to the NYT's 2005 revelations of clear surveillance lawbreaking by the administration -- is going to do today.

Analogously, in 1973, The Washington Post won the Pulitzer Prize for its work in uncovering the Watergate abuses, and that led to what would have been the imminent bipartisan impeachment of the President until he was forced to resign in disgrace. By stark and depressing contrast, in 2006, Jim Risen, Eric Lichtblau and the NYT won Pulitzer Prizes for their work in uncovering illegal spying on Americans at the highest levels of the Government, and that led to bipartisan legislation to legalize the illegal spying programs and provide full-scale retroactive amnesty for the lawbreakers. That's the difference between a country operating under the rule of law and one that is governed by lawlessness and lawbreaking license for the politically powerful and well-connected.

Chris Dodd went to the Senate floor last night and gave another eloquent and impassioned speech, warning of the consequences for our country from telecom amnesty. He specifically focused on the permanently and comprehensively suppressive effect it will have on efforts to investigate what the Bush administration did in illegally spying on Americans.

At around 2:25, Sen. Dodd quoted from this blog (from this post specifically regarding last week's testimony of Michael Mukasey) concerning the consequences for our country from ensuring, as the Senate is about to do, that such blatant and deliberate governmental lawbreaking is protected and goes forever unpunished (h/t selise):

From Frank Church and the bipartisan oversight protections of the post-Watergate abuses in the mid-1970s to Jay Rockefeller, Dick Cheney, legalized warrantless eavesdropping and retroactive telecom amnesty in 2008 -- that vivid collapse into the sewer illustrates as potently as anything could what has happened to this country over the last eight years.

UPDATE: The Dodd/Feingold amendment to remove telecom immunity from the bill just failed by a whopping vote of 31-67 -- 20 votes shy of the 50 needed for a passage. A total of 18 Democrats joined all Republicans in voting for immunity: Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln. Obama voted against immunity, and Hillary Clinton was the only Senator not voting. Thus, the breakdown on the vote was similar to what it always is:

Democrats -- 31-18

Republicans -- 0-49

As always, when it comes to the most radical Bush policies, the GOP lines up lock-step behind them, and the Democrats split, always with more than enough to join the Republicans to ensure passage. That's the process that is called "bipartisanship" in the Beltway.

Perhaps even more repugnantly, even Dianne Feinstein's amendment merely to provide that the FISA bill they are about to pass would be the "exclusive means" for presidential eavesdropping failed by a vote of 57-41 (it fell 3 votes shy of the 60 votes needed for passage, under the agreement which requires that every amendment attract the number of votes it cannot get). As Kagro at Kos says:

In rejecting the Feinstein "exclusivity" amendment to the FISA revision considered on the Senate floor today -- an amendment that failed by a vote of 57 Ayes to 41 Noes, thanks to another "painless filibuster" of precisely the type we were promised would not be tolerated on this bill -- the Senate has voted to say that although they were passing a law governing surveillance, it was OK if the President decided that he really didn't like the law very much and wished to make up his own instead.

Exclusivity -- the purpose of the amendment that "failed" -- meant simply this: that the law they were passing was the law, and it was the governing authority for how surveillance could be conducted in America.

The Senate just rejected it, so that means that they're passing a law, but if a president decides later on that he thinks there's really some other controlling authority besides the law, that's OK.

So not only is the Senate enacting a bill granting vast new warrantless eavesdropping powers to the President, they are unwilling even to declare that it is the law of the land and that he is required to abide by it (Matt Browner Hamlin has the equally reprehensible vote tallies on the other amendments here).

UPDATE II: FDL has a petition, jointly sponsored by me, directed at House members, demanding that they reject this lawless, authoritarian Senate bill and defend their own, previously passed bill (the RESTORE Act). I encourage everyone to sign it. You can do so here.

UPDATE III: Atrios makes a point always worth highlighting:

While one can't discount legalized bribery campaign dollars entirely, I do think too often we assume they're the reason lawmakers do the "wrong thing" when the simpler explanation that they believe the wrong thing is in fact the right thing is the answer.

Too many Democrats simply don't have the values we imagine they do, and it lets them off the hook too much to assume they're simply craven people who need to get re-elected instead of bad people who don't share our values.

There's a temptation, particularly on days like today, to talk about what motivates "Democrats" -- as though they're a monolith acting collectively with the same drives. They're not. Some do what they do because their only concern is a craven desire to be re-elected. Others believe in one thing but are afraid to vote that way (because they'll be called Soft on Terror, Liberal, etc.), while others still are influenced by Beltway money and other cultural pressures. Some are motivated by a combination of those motives.

But a large number of elected Democrats vote in favor of the radical Bush agenda for a very simple reason: they believe in it. Despite the glorious "D" after their name, their views are materially indistinguishable from the defining ones of the Bush faction on the key issues. A huge portion of Congressional Democrats are members of the corrupt, bipartisan Beltway political establishment first, and everything only follows that, and they thus embrace and support the values of that establishment.

That's why Bush has won and -- even with "Democrats in control of Congress" -- continues to win most key votes. The fault lines in the Beltway aren't primarily between Republican and Democrat but between those who support the core values of our political establishment (as reflected by the Bush administration) and those who don't. Through a bulging coalition of both Democrats and Republicans, the pro-establishment forces have a strong, clear and easy majority, and that's why the most radical Bush measures continue not only to prevail, but -- as today -- do so easily.

UPDATE IV: Here is the first paragraph from Eric Lichtblau's NYT article this afternoon:

After more than a year of heated political wrangling, the Senate handed the White House a major victory Tuesday by voting to broaden the government's spy powers and to give legal protection to phone companies that cooperated in President Bush's warrantless eavesdropping program.

To conserve resources, newspapers should just create a macro of that phrase -- "the Senate handed the White House a major victory today" -- and then just program it to be automatically inserted into every article reporting on anything done by the Senate. That system would be foolproof.

On a related note, The Washington Post's Dan Froomkin cites the primary justification for telecom amnesty -- that these companies were just doing what they were told by the Government -- and then asks rhetorically: "isn't that the very definition of a police state: that companies should do whatever the government asks, even if they know it's illegal?" I used to think that amnesty supporters held their position because they didn't understand this extremely simple point, but now I think that most of them have their position precisely because they do understand it. A lawless "police state" -- and that's the only term that can be used to describe what this bill creates -- is exactly what our political establishment desires.

UPDATE V: Final passage in the Senate of the Cheney/Rockefeller bill was 68-29. 19 Democrats joined all Republicans to vote in favor of warrantless eavesdropping and telecom amnesty: Conrad, Rockefeller, Baucus, Webb, Kohl, Whitehouse, Bayh, Johnson, Bill Nelson, Mikulski, McCaskill, Lincoln, Casey, Salazar, Inouye, Ben Nelson, Pryor, Carper, and Landrieu. Neither Obama nor Clinton voted on final passage.

Glenn Greenwald

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