In Which I Attempt To Console You About Telecom Immunity, Which Won't Have Especially Terrible Effects

So telecom immunity passed.  This is a bad thing, and it demonstrates the extent to which corporate money corrupts the Democratic leadership.  There's no good reason to let the big telcos off the hook for illegally giving people's information away.  But a lot of people seem to regard this as a horrific calamity, while I think it's a minor mistake that ultimately won't amount to much.

Hilzoy's "FISA: Why It Matters" is the best argument I've seen for why telecom immunity is a disaster.  I've copied the core of the argument below, and I'll respond to it bit by bit:

If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster.

That should all be in the past tense, because the telecom immunity provision doesn't say anything about what Presidents might do in the present or the future.  Here's the relevant part of the telecom immunity provision:

Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that...the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007.

So the bill doesn't cover any shenanigans by future Presidents, or any Bush shenanigans in the months to come.  Only shenanigans that ended on or before 1-17-07 are protected. 

Now, the natural question to ask is "Doesn't this set a bad precedent for the future?" and the answer, as far as I can tell, is, "Yes, but nobody in the future really cares about precedents like this."  This isn't a judicial precedent that the courts hang on to and respect.  This is a legislative precedent that emerged because Steny Hoyer decided that it would be good business to sell the telcos the immunity they wanted in exchange for campaign contributions. 

Whether future legislators engage in similar dealings will depend on whether their corrupt calculations work out the way that Hoyer's did.  If they see advantage in it, they'll do this sort of thing, and if they don't, they won't.  Whether or not they will see advantage is not heavily affected by what we do today.  The point that Congress once immunized the telcos after 9/11 will have some effect on the debate and thus the calculations, but probably not as much as a charismatic person making a really good cable TV appearance, or corporate interests upping their bid for the favors in question. 

And I doubt that telecom immunity will play a significant role in enabling future administrations to enlist corporations in aiding and abetting all manner of plunder and slaughter.  (I take it that's the concern expressed in this typically punchy line from Jesse Taylor: "I will accept Obama’s cave-in on FISA if, the next time I commit several major felonies all in a row towards no discernible productive result, I can just say he asked me to do it and get off scott free.  Deal?") 

The telcos did what Bush asked them to without any precedent of immunity, so the precedent of immunity certainly isn't a necessary condition for corporate malfeasance.  And thanks in part to Chris Dodd and all you anti-immunity activists out there, the precedent won't be that reassuring.  There isn't any guarantee that you can get immunity for your misdeeds even with the Administration squeezing out their last drops of 9/11 crazy juice.  Getting it is a long messy process where people will  block and delay your legislation and you'll have to pay out lots of campaign contributions to whoever controls Congress.  And if there's publicly accessible evidence of your misdeeds causing something untoward to happen (which didn't happen in this case, but it's not something you can rule out in advance) public pressure will prevent Congress from immunizing you at any price.  This isn't the sort of thing that makes a CEO think, "Hey, I should do that!"

Back to Hilzoy:

Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted.

This is a good point.  This bill is basically the same kind of garden-variety corruption one expects from Congress -- protecting wealthy interests at the expense of ordinary folk.  That's why it's a bad piece of legislation.  But Congress passes junk like that all the time (the farm bill, lots of defense appropriations, not bargaining hard with Big Pharma, etc) and it's not the end of the world.  And that's why I'm writing this post -- I don't want people to lose perspective and think that this is too much more than just another garden-variety bit of corporate corruption.  It's a lot closer to the tax breaks for ceiling fan importers that it is to torture. 

My friend Dennis Clark suggested over email that the government indemnify the telcos instead of immunizing them.  That makes some sense -- since the President screwed up and pushed bad legal advice on them, the government will be on the hook for whatever damages emerge.  It'd be sad to make the taxpayers liable for another Bush disaster, but it'd be fairer than giving people no compensation for whatever damages they suffered.  And every time someone wins a suit, we'd be cursing Bush for it. 

It's also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job -- not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.

Won't a future administration also be able to tell us what the program involves?  Which means, all you Yglesias commenters who are unhappy with Barack Obama for going along with the corrupt people and supporting telco immunity, make sure you do whatever you can to get him elected.  McCain is not an option.

Hilzoy concludes:

George W. Bush and his administration have done everything they can to undermine the separation of powers. This bill would retroactively say that that's OK, and would in addition prevent us from suing corporations that went along with the President's request to break the law. That is a request he has no right to make, and legal liability is the best way of ensuring that he does cannot do in practice what our Constitution forbids him.

If it were five years ago and we were discussing whether to give Bush a power like this that lasted into the future, I'd agree.  But at present, our best way of ensuring that Bush doesn't undermine the separation of powers is Inauguration Day 2009, now only a few months away.  And our best way of ensuring that future presidents fear to tread where this fool walked is by absolutely crushing his party in November. 

Comments

[low-tech cyclist]

I may be wrong about this, but it seems to me that Obama's AG could simply say "I'm not in the business of making such certifications." If that's the case, then the ACLU and the EFF could hold withdraw their suits today, and re-file them in seven months.

Plus, as you say, the Obama Administration could do its own investigating, or opening of the books, in seven months. But I suspect this is one area where Obama's cautious side would win out, and he'd be more likely to OK an investigation if discovery in a private suit made it clear that this matter needed a lot more daylight.

[janinsanfran]

There isn't any guarantee that you can get immunity for your misdeeds... you say. You are right.

But there is also no promise that you won't get immunity -- some have.

Seems like this is a substitution of who can buy the best political outcome for somewhat settled law. That does seem disturbing.

[Toast]

at present, our best way of ensuring that Bush doesn't undermine the separation of powers is Inauguration Day 2009

I disagree completely on this score. The best way to ensure that Bush doesn't undermine the separation of powers would have been to prevent him from walking out of the White House of his own volition next January. Absent punishment of some kind - impeachment being the remedy that comes to mind - Bush's behavior will forever stand as the benchmark. Future presidents will know that they can break the law without any reasonable fear of reprisal.

[FearItself]

Won't a future administration also be able to tell us what the program involves? Which means, all you Yglesias commenters who are unhappy with Barack Obama for going along with the corrupt people and supporting telco immunity, make sure you do whatever you can to get him elected.

The ability of a future administration to tell us what happened will likely be constrained by laws regarding confidentiality of presidential records, executive privilege, etc. (Assuming that the future administration in question has more respect for law than this one.)

More importantly, this line of reasoning essentially asks the public to trust that those who (will eventually) hold power will act in the best interests of the public. How's that working out for us so far?

I've been an Obama supporter for quite a while now, but like most of his supporters, I don't think he's going to bring about the Millenium in American public life. He's still a politician, and his decisions about what to reveal about Bush's wrongdoing will be driven by a (perhaps craven) political calculation. The major benefit of the telecom lawsuits is that they were insulated from such calculations; at least some of the truth was highly likely to be revealed during discovery. Unfortunately, that insulation has now been breached. There's no good reason to believe any specific information about this illegal surveillance program will ever be made public.

I think that's a pretty big deal.

I'm still going to work to elect Obama in '08, but I'm going to work even harder to support a primary challenge to Steny Hoyer in '10. We have to change the variables in the calculations these people make.

[litbrit]

Absent punishment of some kind - impeachment being the remedy that comes to mind - Bush's behavior will forever stand as the benchmark. Future presidents will know that they can break the law without any reasonable fear of reprisal.

Toast, I am with you 100% here.

It seems so elemental, so completely logical and right. How is it that we've strayed so far from this legal truth?

[Shock Mouse]

If the people demanding an end to telco immunity are the same demanding we should have impeached Bush, I feel vindicated in my opinion about telco immunity.

[litbrit]

If the people sneering at impeachment-supporters are the same ones who find the building of a coherent sentence to be a skill that's far afield of their cognitive powers, I feel vindicated, too.

[low-tech cyclist]

FearItself - the trick is getting a Dem to challenge Hoyer in the primary. I'm not sure it's happened in the past decade, and if it has, the challenger has been inconsequential.

I have the bad fortune to be represented by Hoyer in Congress, and I'd gladly work my butt off in support of a progressive challenger's campaign. But first, we'd need such a challenger. (No, I can't run against him myself - I'm a Federal employee. Hatch Act, and all that.)

[MR Bill]

It still depresses me more than I can say.
I'm taking a month off commenting on blogs and limiting my time online. It's summer, I have my own writing I want to do and I hope the world keeps spinning. I'll be 52 in just over 3 weeks, and I'm pretty sure the world will keep spinning (and blogtopia snarking) until late July.
Y'all take it easy.

[Stentor]

I think an aspect of the uproar is not just that the direct effects of the FISA bill are so bad, but that it's highly *informative* about the real allegiances of our rulers. The routine petty corruption you analogize it to goes under most people's radars, but here's an issue that for whatever reason has generated a lot of attention from the grassroots, and is universally condemned. If there were ever an issue for Congress to be not-corrupt on in order to appease voters and maintain a veneer of not-corruptness, it would be FISA -- yet they couldn't even manage that.

And our best way of ensuring that future presidents fear to tread where this fool walked is by absolutely crushing his party in November.

That won't work very well if the candidate who crushes his party would *also* like to tread there -- which is why people are so upset with Obama.

[Neil the Ethical Werewolf]

I may be wrong about this, but it seems to me that Obama's AG could simply say "I'm not in the business of making such certifications." If that's the case, then the ACLU and the EFF could hold withdraw their suits today, and re-file them in seven months.

Neat! I didn't think of that.

I'm still going to work to elect Obama in '08, but I'm going to work even harder to support a primary challenge to Steny Hoyer in '10. We have to change the variables in the calculations these people make.

That's an eminently reasonable course of action, and I wish you luck in all these endeavors.

[Sir Charles]

I am completely baffled by the Telecom bill and why the Dems would feel the need to give this lameass, lameduck, 28% approval motherfucker a victory. People hate this President -- his opposition is like manna from heaven. Fear him not.

l-t c,

Did you know that Hoyer and Pelosi were both interns in the same congressional office in 1962 -- they worked for Daniel Brewster of Maryland then. Rumor has it that Pelosi couldn't stand him then (either).

Mr. Bill,

Have a great summer -- pop in and say hi when you get the urge.

[joel hanes]

Many of us who passionately wanted to defeat retroactive telecom immunity aren't so much interested in punishing the telecoms themselves as we are in using the discovery process in the telecom lawsuits to subpoena the telcos for Administration wiretap documents. In other words, we expected the telco trials to disclose hard evidence of Bush/Cheney/Gonzalez crimes, evidence that would compel impeachment, prosecution, or at least complete disgrace. We were ready to let the telcos off the hook in return for smoking guns.

That was, I think, a goal worth pursuing.

It's my suspicion that from sometime in 2000 forward, this Administration has routinely and systematically wiretapped essentially its entire political opposition. That's what I expected the documents to show.

[low-tech cyclist]

Chas - I didn't know that, but I knew their rivalry went way back, and that Pelosi was from a Baltimore political family.

Somebody's done a nice job of hijacking this part of Hoyer's Wikipedia page. (I should probably do a screen capture; it won't stay that way for long, I expect.)

MR Bill - enjoy your summer; we'll be looking forward to seeing you here again when you get enough of that 'real life' stuff I occasionally hear about. :)

[low-tech cyclist]

Joel - I'd be interested to know your thoughts about my first comment in this thread. It seems to me that Obama's AG could simply decline to get involved in such certifications, and let the ACLU and EFF suits go forward. They might have to withdraw their suits now to keep Mukasey from certifying, but with any luck, the Obama Administration's only 7 months away.

[joel hanes]

My understanding is that as soon as the retroactive immunity provision becomes law, Mukasey can wave a magic wand and certify the telcos for the entire duration of this Administration (in effect). And that it's a one-way street: once immunized, never again at risk. And that unless a miracle happens in the Senate, retroactive immunity is a done deal, and has been deliberately and expertly engineered by Speaker Pelosi and Majority Leader Hoyer, with as much political cover as they could provide.

I should be delighted to learn that I am wrong about any particular ...

[Corvus9]

I gotta disagree with Toast and litbrit. From the Alien and Sedition acts, to the Trail of Tears, to Andrew Johnson's sabotage of Reconstruction, to the governments collusion in the targeting of labor activists, to everything that J. Edgar Hoover got up to, to Japanese internment, and beyond, our presidents have allowed and done some pretty sick shit and gotten away with it. I honestly don't see anything that Bush has done as being particularly worse than some of the things that other presidents have allowed on their watch. The real difference is that Bush has been so incompetent at doing it, and keeps getting caught at it (and he does it a lot too). This is really only a problem if one assumes that the past crimes of presidents should become precedent. What seems more likely to happen is that we realize that was wrong and go about trying to stop it from ever happening again. And I think there is a lot of will to make that the case here.

And Neil, thank you so much for writing this. I was starting to despair, in a number of directions, from reading all this FISA stuff all over the place, and it's nice to see a well-reasoned piece from a trusted voice point out that everyone else mights be getting a little unhinged on this.

[John J Emerson]

Someone or another pointed out that the discovery process in a lawsuit against the telecoms would be one of the few ways we could get at the Bush administration's offenses, which is why the Bush administration protection act.

The way the biggest Iran-Contra conspirators (e.g. GHW Bush, who was deep into it) got away scot free with their reputations intact set a very bad precedent. For the Bush-Cheney conspirators also to get away scot free would multiply the effect of the precedent. George Will and various other such think this is the way it should be; we shouldn't "criminalize policy disagreements". Apparently Obama does too. The Bush-Obama transition looks like it will be business as usual, with the nice Democrats going on with the nation's work and letting the malefactors leave office quietly and safely.

I doubt that Neil wants to accept Corvus9's thanks. Is "Bush wasn't really all that bad, in context, and let's not get all excited" really the message he was trying to convey?

[low-tech cyclist]

Joel, Neil quoted the relevant part of the statute up top:

Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending...

Sure sounds to me like (a) Mukasey can't wave his magic wand pre-emptively - there actually has to be a civil action filed with a court, and then the AG can certify that the defendant was only trying to be helpful to GWB & Co.

And it also appears that what the magic is being applied to isn't a particular defendant, but a particular suit. Unless there's language elsewhere in the bill that says Mukasey can wave his magic wand to forestall not only this suit, but all future actions, it seems to me that it's gotta be done on a suit-by-suit basis.

I think it would be just as well for the ACLU and the EFF to drop their suits against the telcos for seven months, just in case, because it appears that Mukasey's magic powers don't exist until there's a suit to apply those powers to.

[Neil the Ethical Werewolf]

Well, I'm with Corvus on this much: The Constitutional damage from stuff like this is way overstated. And when I think about what is truly horrific about the Bush administration, it's not that stuff -- it's the Iraq War. That's what really stands out as inexplicable and horrible from Bush.

You know what Constitutional damage looks like? Andrew Jackson saying, "John Marshall has made his decision. Now let him enforce it." It looks like Japanese internment. Or any of the other things Corvus cited. I can even see a case that Bush's torture and habeas offenses are somewhere in the same league. But telecom immunity? I just don't see it, and I don't see how blocking telecom immunity helps us dissolve the negative consequences of torture.

Utilitarian that I am, I don't see any intrinsic value in punishing Bush for whatever he's done (which evidence from telco suits might help us with). I just care about bringing about good consequences like the stuff we can pass with a massive election victory. And I don't think this is likely, but if it turned out that the funds Hoyer raised by selling us out were large enough to buy us a couple more seats in Congress, I'd be willing to call it a good deal. Universal health care matters. Bush? Not so much.

[Corvus9]

My thanks towards Neil were separate from the point I was making about precedent. I didn't mean to imply that he endorsed those statements, and to the extent that point was alluded, I apologize.

And I have to say, while something like what Jackson did is damaging, it is also recoverable. Most people seem to agree that what Jackson did was wrong. At least that is what I was taught in my very non-controversial high school history class. I think that usually, when the president or congress violate the constitution, eventually that violation gets overwritten, or considered wrong. Nobody says we should intern people again (except for racists), or violate our treaties and commit ethnic cleansing (well, maybe neocons). America is actually getting better, and this stuff is becoming less permissible.

And I will say this about Bush: the particular atrocities he (and Cheney) have been responsible really do pale before a lot of what has gone before. A lot more people died in Vietnam than in Iraq. Warrantless wiretapping is not Alien and Sedition acts. The problem is just that there is so much of it going on, and so much obvious corruption and incompetence on top of it. I am not saying he isn't the worst president; he is. It's just that he's the worst for reasons other than the magnitude of any particular crime, and that his crimes are no longer acceptable. Back in the day, presidents got away with this kind of stuff all the time; it's just that we have recently stopped accepting it.

[ACS]

I'm going to have to agree with the people who're saying that telecom immunity isn't that important. In order to reach the relevant documents before January 2009, you would have to:

(1) Find a defendant who has been harmed by telecom collusion with illegal wiretaps. Given recent changes in civil procedure (i.e. the Supreme Court's endorsement of Twombley), the complaint would have to contain some reasonably specific accusations as to how the harm occurred.

This first part is pretty close to impossible without already having the documents that the suit seeks to obtain.

(2)Find a court that would accept that FISA intends to create a private right of action.

(3) Defeat the incredibly expansive view of national security privilege that already exists, in order to obtain documents that are likely only in the possession of the United States government.

(4) Outmaneuver the contract the telecoms have with the government. I suspect it causes the government to indemnify the telecoms, anyway, at which point you have to deal with:

(5) Sovereign immunity.

(6) Then there's the issue of damages, which are... nominal, at best, without a criminal prosecution.

This is the worst lawsuit possible: suing an immune defendant over nominal damages without a clear complaint in a national security-involved case. Plus, the program is likely to end by the time all the interlocutory appeals and delaying tactics are finished.

-- ACS

[joel hanes]

low-tech cyclist :

thanks for pointing that out. I am glad to be wrong about this.

Maybe there is some hope after the election, then -- if not with these suits, with equivalent suits from different plaintiffs.

[low-tech cyclist]

Nonetheless, I'm still quite concerned about this bill. It legalizes the sweeping up of everyone's communications to search for patterns, which would be the basis for wiretap warrants.

In other words, 'probable cause' would be met by satisfying a software algorithm. That would kinda gut the Fourth Amendment.

It's hard to imagine that a Supreme Court in the forty years previous to the current one would have OK'd such a practice. But I'd hate to put this issue in front of the Roberts court.

Maybe this will be a temporary blip in the history of Fourth Amendment rights. But it's hard to see when and how this will get reversed.

[xoites]

Repeal FISA is now a day and a half old. We have nine bloggers with at least one more in the works and have been visited by 499 unique viewers. Other sites have placed us on their links and people are posting about us independently.

Anyone who wants to is welcome to sign up and become a Poster. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.

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http://repealfisa.wordpress.com/