This week we saw Congress pass a new version of the Foreign Intelligence Surveillance Act (FISA) with a clause that grants immunity to telecommunications companies that cooperated with the President’s past requests for assistance in identifying terrorist communications. The right cheered briefly. The Left launched such serious, dire warnings about the health of the Republic, though, that I find myself compelled to answer.
I received a private communication from a friend of a friend, who drew my attention to a speech Senator Chris Dodd (D, CT) delivered to the Senate on June 24, regarding the importance of the rule of law and how granting immunity to the telecommunications companies sends a message that undermines it. Glenn Greenwald at Salon.com makes a similar and equally dire case, and you can see more, similar reactions from Daily Kos, CrooksandLiars, FireDogLake, and all the rest of the Usual Suspects.
I take the issue seriously. The debate, which came into clear focus in the weeks following 9/11/2001, is over what we’re willing to do to protect ourselves in this asymmetrical war we’ve actually been fighting against worldwide Wahabism, without knowing it, since the late 1970s. The problem is that with the enemy living within our own borders and deliberately blending in, effective measures to locate and neutralize them could erode essential liberty. It’s similar to the age-old tension between liberty and law enforcement, only on steroids: failure, rather than merely allowing general social deterioration (as if that were not bad enough), might result in the immolation or poisoning of entire American cities. None of us can forget the burning World Trade Center; few of us are so naive as to think that’s the worst that could be done. None of us wants to lose essential liberty, either.
Having said that, I regard the concern of the hard Left with complete and unremitting contempt.
In the first place, any mention of the rule of law from a political leftist gets a snort from me. The Left showed us what they think of the rule of law back in the 1990s, when they excused campaign finance illegalities, perjury, suborning perjury, obstruction of justice, sale of pardons, bribery, even possible serial rape as minor offenses not worthy of our time. They show us how they feel about the rule of law every time they applaud an activist judge creating laws out of thin air. They show us how they feel about the rule of law when they applaud the use of law enforcement as a partisan political weapon. They show us how they feel about the rule of law when they defy federal immigration laws, overturn clearly passed ballot initiatives by judicial fiat, brag about how they’ve violated restrictions on voter fraud, and so on. (Want to see a fascinating sociological refutation of the political Left’s concern for the rule of law? Check this article.)
I’ve said this before: Democrats generally use principles like a brawler in a bar fight uses a beer bottle. When they need a weapon, they’ll grab the nearest one and bash their opponent, usually breaking it. Once it’s broken or not needed, they just throw it away. I’ve known exceptions, but this is the rule. It’s contemptible.
When I realized, about 10 years ago, that the left was merely taking advantage of my conscience whenever they decided to invoke a principle, I moved to protect myself. My principles are sound, and I take them seriously; but no leftist has the right to tell me how to apply them. They’ve lost that right by consistent abuse. So, no, Glenn Greenwald, and no, Senator Dodd, I’m not going to pay attention to your phony concern over the rule of law. You wipe your buttocks with the rule of law when it suits you, for which reason you’ve lost the right to be taken seriously.
Beyond that, though, it’s just, plain silly to claim that telecomm immunity violates the rule of law.
If there’s one institution in the land that has the undisputed right to declare that a law was badly formed and ought not be enforced, it’s the legislature. There’s a Constitutional injunction against making past acts illegal retroactively, but there’s no corresponding injunction against retroactive immunity; the Constitution’s authors protected citizens from unjust government prosecution, but saw no danger from runaway government forgiveness. Congress possesses the clear, Constitutional power to say “Oh, gee, that law we passed 20 years ago just is not working; we declare anybody who violated it free and clear, and while we’re at it, here’s an improved version of the law that doesn’t have those problems.” It’s their law, and if they decide it should not be enforced, that’s their right. Exercising that right not only does not damage the rule of law, it upholds it, so long as the decision is not clearly a sop to political cronies.
There’s no serious possibility that this is a sop to political cronies. The President asked the heads of major telecommunications companies to allow them access to telephone and internet traffic, so they could select and identify terrorists communicating with each other for the purpose of attacking the US. This is a perfectly legitimate national security request. The President assured the companies that he had Constitutional and legal authority to ask for this sort of cooperation. Make no mistake that the companies did not consult their own competent legal staffs; they certainly did, and most decided that for national security reasons, the requests would be honored. One company did not comply, and so far as I know, suffered no loss for having refused. We don’t like having the government read our mail, just as we don’t like the government’s right to search our premises or our persons; but we allow such things within limits, because we know they’re essential to our safety. We as a culture approve of this sort of cooperation, and don’t think private companies should be penalized for attempting to cooperate with the government in good faith for legitimate national security reasons. Congress, for once, represented us well.
The Left’s actions regarding telecomm immunity are worth noting for what they say about the Left. They scream very, very loudly about how seriously the President has broken the law; but they’re not calling for his arrest, nor even for his impeachment. If the law has been broken so very clearly, that’s the proper remedy. That’s not what they did.
What they did, instead, was launch lawsuits, forty of them, against the private companies that cooperated. Why did they do that? First of all, it produces a potentially unbounded flood of litigation; if you’re one to follow the money trail, consider the hundreds of millions, and possibly billions, of dollars trial lawyers would make when the telecomms decided to settle — and then consider how much trial lawyers contribute to Democratic causes.
Second, it discourages private companies from cooperating with the President; they’d think twice before agreeing to any sort of cooperative action in the future. That reluctance produces a barrier against surveillance of any kind, without incurring the political damage that passing unpopular laws produces; the lawsuits constitute another form of leftist control that bypasses public debate.
Third, it gives the Left nearly unbounded opportunity to expose classified documents to public view. Forty lawsuits means literally hundreds of lawyers filing possibly thousands of information requests. Forty lawsuits means possibly dozens of different judges, and they’d only need one hard-left judge rejecting the government’s national security exception in order to initiate a loud, self-righteous crusade for government openness and the unsealing of classified documents (that would last for years; see reason 5, below). The Democrats in Congress even offered, as a substitute for immunity, access for the telecomms to classified material in order to prepare their defenses. Never mind that Congress does not have the power to declassify documents; the goal was obviously disclosure in as public and broad a manner possible.
Fourth, it attacks capitalism. Let’s face reality here: the Left in America is shot through with neo-Marxist dogma, and that includes a general hatred of legitimate business ventures. They regard corporations as evil, simply by virtue of the fact that they’re corporations. When the Clintonistas held the White House, they had no objection to extensions of Executive power implied by government-sponsored lawsuits against corporations; they used such lawsuits as a weapon to produce compliance with policy initiatives they could not successfully drive through Congress, specifically to produce a de facto tax on tobacco and to attempt to regulate firearms.
And fifth, the lawsuits would extend the noise for at least a decade. The strategy of the Left is always to make as much noise as possible for as long as possible; it’s how they maintain control. It doesn’t matter, to the Left, whether they’re correct or not, whether they’re genuinely moral or not, whether they argue honorably or not, or even whether they win or not;what matters is that they always have a cause about which they can continue to feel victimized and morally superior, and assign themselves some self-imagined moral high ground. A compromise FISA update that makes the President’s policies uncontroversial robs them of the ability to produce noise. They’ll continue to snipe about “illegal wiretaps” so long as they don’t get completely rejected for doing so, but their power to control the public mind space vanished when the compromise bill passed.
I intend to write, over the next day or so, why I’m not completely outraged about the fact that the NSA might possibly possess the ability to scan every email I send and every phone conversation I hold. For the moment, though, I’m simply pointing out that granting immunity from lawsuits to the telecommunications companies that cooperated with the President has no destructive impact on the rule of law in America.