Everyone's in a tizzy about Olbermann, Dean and Greenwald, but lost in the turf-battles, credibility wars and personality conflicts is a rather large point.
Dean's right, the FISA Bill does not preclude criminal prosecution of the telecoms, only civil prosecution. Whoopee!!!!! Obama does have a secret plan to fix it. Oh, you faithless minions, you must be castigated.
Um, what a minute. Not so fast, boys. A criminal prosecution requires a crime doesn't it? What crime did the telecoms allegedly commit? Because I'm having a hard time seeing it. . . .
I have no doubts that the federal government committed crimes - that is almost certainly true even based on the very limited facts available. But what crimes were committed by the telecoms?
I won't bore you all with trying to prove a negative. I'll just state that I've looked, and I haven't found a strong argument for criminal liability on the part of the telecoms. They didn't do the actual spying. They followed orders that they may or may not have had reason to believe were illegal, but nothing I've seen supports an intent on the part of the telecoms to commit a criminal act. Certainly their failure to protect their customers' privacy is a Cingular singularly shitty thing to do, and it does, in fact, violate some laws, including the 4th Amendment, but illegal does not necessarily mean criminal. It is significant to me that the much-lionized Mr. Dean has not identified the crimes he thinks would be prosecutable. If someone can point me to a specific theory of criminal liability, I'd be most grateful.
But until then, I have to wonder, what crimes? Is this all just a distraction? What are you boys really up to?
And in our rush to either condemn or praise, let's not lose sight of the problem people . . . .
The FISA Bill's civil immunity provisions are only a big issue because they foreclose the possibility of discovery, the potential to find out exactly what was done by our government - what crimes were committed by the government. To be frank, even if immunity is stripped and the claims are allowed to proceed, actually getting that discovery is a long shot. There is still the standing issue and the defense of apparent authority.
In essence, the issue of the day is whether we accept the possibility of criminal prosecutions to ease our outrage over granting immunity from civil suit. But if the telecoms committed no crimes, there can be no criminal prosecutions. So show me the crimes.
In the meantime, let's not lose sight of the fact that regardless of telecom liability, the FISA Bill is just another unconstitutional executive power grab, power that will be used secretly with no real oversight and no accountability. That is the problem. That is what needs to end.
I don't really care who flip-flopped first or who didn't. What I care about is that our next President reconsider his support for the main body of this Bill and stand on principle. Senator Obama, please uphold the Constitution, or justify your refusal to do so on the basis of "grave threats" to our security. As it stands, I think the gravest threat to my security right now is the unchecked shredding of the Constitution.