Glenn Greenwald has the following queasiness-inducing news:
UPDATE: Speaking of fear-mongering, I've been working today on various campaigns to derail the Steny-Hoyer-led effort to vest lawbreaking telecoms this week with immunity. Quick -- and severe -- action will be required because the House Democratic leadership is conniving to negotiate this in secret and then pass all of this quickly so as to avoid debate and consequences. The campaign is going to expand well beyond Chris Carney and will include, at the very least, a massive effort directed at voters in Steny Hoyer's district to make them aware of just what he is doing. I hope to have more details and updates on all of this later today, but will, at the absolute latest, have it early tomorrow morning.
A concerted effort, lots of resources, and alliances with other like-minded factions and groups will be required to make this work. If, as appears, Congressional Democrats are intent on doing this, there should be a hefty and real price for them to pay for doing it.
For those who haven't been following developments in recent days, you can be forgiven for thinking that inside-the-beltway Democrats knew when to recognize and accept victory. Per the New York Times Politics Blog "The Caucus," which Glenn linked to, here's the nature of the "compromise" on the table with regard to the question of retroactive amnesty for the telcos:
After weeks of talks, lawmakers have worked out a deal that would allow federal courts to settle the question of whether the telecommunications companies should be protected because they were assured their participation was legal.
If that description sounds a bit vague and fuzzy to you, that's because it is. Recall the following salient facts:
- Nobody disputes that the telcos engaged in actions which, in isolation, constitute violations of multiple laws.
- Nobody disputes that the Bush Administration provided some kind of "assurances" to the telcos that, notwithstanding the plain language of these various statutes, the telcos could and should nevertheless perform such actions.
- There is an open legal question as to whether the Bush Administration has to legal authority to "order" private persons to engage in activity which would otherwise be clearly illegal under these cicumstances. (Now, to be honest, there's not MUCH of an open question: one side has 800 years of Anglo-American legal theory and 200 years of U.S. constitutional law saying that the President is not above the law, while the other side has John Yoo and a few other crazies, but let's not quibble.)
- Even if the Administration view on #3 is wrong (i.e., even if the President can't wave his magic Article I Wand and make illegal activity legal), there remains an open legal question as to whether the telcos can rely on such "assurances" (even if they turn out, in hindsight, to have been legally unsound) to shield them from legal liability when they engage in the underlying illegal activity.
Now, the Caucus's description of the proposed "compromise" might mean one of two things:
(1) After weeks of talks, lawmakers have worked out a deal that would allow federal courts to settle [question #4:] the [legal] question of [should] the telecommunications companies [(or any other private person)] . . . be protected [IF] they were assured their participation was legal[?]
OR
(2) After weeks of talks, lawmakers have worked out a deal that would allow federal courts to settle [question #2:] the [factual] question of whether the telecommunications companies . . . were assured their participation was legal.
See the difference? In version 1, the federal courts would decide the fundamental legal question. Of course, it would seem a little odd if this were indeed the resolution. After all, there are already multiple lawsuits pending in federal courts, and those courts will already have to face this fundamental legal question. So tell me again what the urgency was for Congress to act to tell the federal courts to do something they already are required to do and are already on a path to doing?
But you never know; maybe stalwart progressive Steny Hoyer has pulled a fast one on those attempting to shield the telcos from legal liability for their illegal activity, and convinced them to accept a compromise which is really not much of a compromise at all! Hurray and huzzah, Steny!
. . .
Or, perhaps in fact the "compromise" that's on the table is version 2: Congress declares by legislative fiat that the answer to legal question #4 is the answer that the telcos really want it to be -- i.e., IF the telcos were "assured" by the Bush Administration that their participation were legal, THEN they are permitted to rely on such assurance and are free to disregard the law because the Preznit said it was okay. But if Congress is answering the legal question itself, then what's left for the courts to decide?
Precisely: the factual "question" of whether the telcos in fact received such assurances from the Bush Administration -- i.e., question #2. Why did I just put "question" in scare quotes? Because nobody really expects that the telcos would have agreed to break the law unless they got something in writing to cover their asses -- of COURSE they got written "assurances". The telcos want to say that, notwithstanding that they employ large legal staffs (many of them well-versed in precisely the sorts of legal and constitutional questions that a telco might expect to be faced with) capable of performing their own independent analysis -- and even if those in-house lawyers would have said (hell, even if they DID say) that they could not legally cooperate in spying on innocent private Americans just because the president told them to -- that they'll be let off the hook if they went ahead and did so anyway, even if their written assurances took the form of a scribbled note in red crayon from George Bush saying
"Im the preznit and i say its ok too spy on peepul whenevvur i tell you too."
So which do you think it is? Well, the ACLU has taken a look at Senator Kit Bond's proposal, which appears to be the starting point for the "compromise," and it sure looks like version two is what we're talking about:
The immunity clause is judicial theater.
It gives the attorney general the power to decide if cases against telecommunications companies will proceed. The AG only has to certify to the FISA court that the company didn’t spy or did so with a permission slip from the president. After the FISC dismisses the case, the court is barred from discussing what that dismissal was based on.
But, but, but, we all like Nancy again after she stepped up and helped push Hilary out of the race, right? Surely she wouldn't sell us out on this, would she? Let's see what the Caucus's post has to say about that:
Speaker Nancy Pelosi said she wants the matter settled before Congress breaks for Independence Day at the end of next week, suggesting she is ready to bring the issue to a head.
"We want to pass a bill that will be signed by the president," she said. "And that will happen before we leave for the Fourth of July. So the timing is sometime between now and then. I feel confident that that will happen."
Hmmm. Guess we're on our own again on this one.
UPDATE: Thanks to berkeleygrad, here's a link to a page on the Electronic Frontier Foundation's website where you can find contact information for your members of Congress to register your opposition.