Raging Red

Well, the FISA bill with retroactive telecom immunity passed today, with help from our own Senator Jay Rockefeller. No surprise there — he’s the one who struck this deal with the devil Dick Cheney in the first place. The way I see it, even if you think telecoms should not be held liable for their cooperation with the Bush administration’s illegal wiretapping program (not my opinion), that doesn’t mean Congress should categorically give them immunity via statute. The plaintiffs deserve their day in court, but Congress has just taken that away from them. Whether or not and/or to what extent telecoms should be held liable is an issue that should be litigated in the courts. Without this legislation, telecoms could still prevail with a judge or jury.

Telecoms already have immunity under existing FISA laws if they meet one of the following requirements:

(d) Defense.— A good faith reliance on—

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or

(3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;

is a complete defense against any civil or criminal action brought under this chapter or any other law.

So even though some telecoms did not cooperate with the Bush administration — on the advice of their attorneys who warned that the warrantless wiretapping program was illegal — the ones who did cooperate now have immunity, regardless of whether or not they knew or should have known that they were aiding and abetting illegal conduct.

But more important than the issue of whether telecoms should be liable is whether or not the Bush administration should be held accountable for its illegal and unconstitutional actions. Sen. Rockefeller claims to believe that President Bush should be held accountable, but the passage of this bill today pretty well seals the deal that the details of this program are not ever going to come to light. Since Congress isn’t actually doing anything to hold the administration accountable, the discovery process in the law suits against the telecoms was pretty much the only investigative vehicle left to find out more about the warrantless wiretapping program. (Whether the government and/or telecoms would ultimately have been successful in withholding information based on claims of state secrets is an open question, but now there’s not even a chance of them being forced to disclose anything.)

This is from a Washington Post op-ed written by Rockefeller last fall:

Today there is significant debate about whether the underlying program — the president’s warrantless surveillance plan — was legal or violated constitutional rights. That is an important debate, and those questions must be answered.

[...]

[L]awsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

To be blunt, I think Rockefeller is full of shit. If he genuinely cared about accountability, he would not have entered into a deal with Cheney to give the administration exactly what it wanted. I’m not sure what constituency Rockefeller thinks he’s representing. I didn’t see any Americans (let alone any West Virginians) clamoring for telecom immunity. To my eyes, Rockefeller was representing a constituency of one — himself (see also here).

As for the presidential candidates, John McCain voted for it and Barack Obama voted against. I don’t believe Hillary Clinton was present for the vote.

By the way, I highly recommend reading the various links in this post if you aren’t up on all the details of how this whole thing unfolded and what it all really means. I didn’t want to bog the post down with too much information, so I included tons of links instead.