The fight to ensure that our Democratic Congress continues to hold its ground and refuses to take Jay Rockefeller's unwise advice to roll over for the Bush Administration on telecom amnesty has been of central importance for many of us in the progressive community. Kossacks mcjoan and Kagro X have both done an outstanding job keeping this and the intimately related FISA issues front and center in the netroots, and groups like the Courage Campaign have done well in making sure that progressive activists continue to lobby decision-makers to do the right thing.
Unfortunately, none of it really matters unless we are willing to carry the logic of this fight to its ultimate conclusion. That conclusion has time and again proven too frightening for most members of the Democratic Congress and even unwise to many in the progressive netroots who are focused on the negative impact it might have on our electoral chances in 2008 and beyond.
The simple fact is that absent the threat of impeachment for those in office responsible for this situation (or, perhaps preferably, the threat of their prosecution once out of office), it makes little to no difference whether Dems fight or cave on telecom amnesty. That's a tough pill to swallow, but the logic is fairly well inescapable. Here's the situation as it stands:
- The Bush administration used mafia-style criminal tactics to pressure telecom companies to abuse and ignore the Fourth Amendment rights of Americans in granting them authority to spy indiscriminately on American citizens without a warrant.
- Most of the telecom companies rolled over the Administration and gave them all the data the Bush/Cheney/Gonzales team wanted on their customers.
- Now those telecom companies are under the threat of massive lawsuits from their customers for violation of the FISA law and the Fourth Amendments in acceding to the
protection racket demands of the Administration.
- The Bush Administration is looking to protect those telecoms from said lawsuits through amnesty legislation. Democrats and progressives nationwide are trying their hardest to ensure that that doesn't happen.
Why are we doing this? Is it our desire to punish the telecom companies and bankrupt them? Clearly not. If this battle is all about hurting the telecom companies for refusing to suffer the fate of Qwest CEO Joe Nacchio then administration enabler Rockefeller is right when he says:
As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future.
It does little good to sue these companies per se. The class-action lawsuits would be enormous, and bankrupting or severely harming these companies for making a difficult decision in face of massive arm-twisting by the President of the United States is hardly our top priority as progressives. Yes, as Glenn Greenwald points out, the telecoms were aggressively competing to undermine the Constitution in order to secure multi-billion dollar contracts from the Government. On the other hand, one can hardly blame the CEOs of these companies for attempting to secure these incredibly important contracts, especially when the alternative is the enmity of the Gonzales Justice Department. Neither the nation nor its legal framework are advantaged by punishing these telecom companies while allowing the Administration that extorted them with a carrot-and-stick protection racket to go unpunished.
No, the only reason to aggressively pursue the telecoms is force their hand into betraying the illegal actions of the Bush Administration that forced them to abuse the rights of American citizens. In this matter, the telecoms are actually the small fry. If we can flip them, we may be able to get a smoking gun with which to pursue the Administration in a serious way.
The problem is that with an election coming up making impeachment politically unpalatable, and both Democratic candidates unlikely to have the Justice Department pursue serious criminal charges against the Bush cabal once they are thankfully out of office, none of this matters.
After all, what good does it do to flip the small fry to turn state's evidence against the big fish if you have no plans to prosecute the big fish? To what end?
Certainly, it cannot be for "principle" or "precedent". If I'm a telecom CEO dealing with a Republican president in the future, and my choices are 1) attempt to secure billions of dollars for the company by cooperating with the POTUS, or 2) risk being railroaded into a 10-year jail sentence, I know what choice I'll make. The precedent of a Constitutional class action lawsuit won't really make much a difference.
There is only one reason to continue to stand up and fight for justice on this issue: accountability not just for the telecoms, but more importantly for the Bush Administration. And until and unless we can convince the powers that be to put impeachment or prosecution back on the table, it isn't going to do much good to convince them to stand strong on telecom amnesty.
The latter doesn't make much sense without the former.