Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

07/11/2008 (12:04 pm)

Telecomm Immunity, the Last Gasp of BDS

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.

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11 Comments »

July 11, 2008 @ 1:31 pm #

Hi Phil,

I’m forwarding your sometimes incisive commentary, sometimes puzzling diatribe, back to Joe. I am happy to report (as you partially know) that he, as a member of the left, does not fit your blanket descriptions of them – he really desires a rational discussion. I presume there are a lot more on that side who share this quality than you are leading us to believe.

Jim

July 13, 2008 @ 2:59 pm #

Phil – pretend what I say here isn’t coming from the pigeonhole called “The Left” (which it isn’t)…that will help with rational discussion.

The constitutionality of what Bush did in his request, and what the phone companies did in complying, needs to be tested in court. Real guidelines should continue to be drawn in this area, and the courts are the proper venue for constitutionality.

If the phone companies broke current law under FISA, they should pay the price for doing so. I really feel our identity as a country is in danger if we err on the side of security over privacy.

I was very frustrated with Obama’s unexplained “Yes” vote this week for immunity. He pushed hard a year ago against granting it; if he had a change of heart, he should explain clearly why. Changing of mind is not “flip-flopping” if it is done in good conscience, and Obama should take pains to convince us that that was his motivation.

Scattered thoughts.

Jim

July 13, 2008 @ 7:18 pm #

The constitutionality of what Bush did in his request, and what the phone companies did in complying, needs to be tested in court. Real guidelines should continue to be drawn in this area, and the courts are the proper venue for constitutionality.

On the contrary, the founders wrote the Constitution intending a robust competition for power between the branches of government. If two branches — say, the Executive and Legislative — come to a compromise over a disputed bit of power, that’s a good thing, and well within what was intended to happen in American government. There’s no particular reason this sort of competition needs to be settled in the courts, and in this case — when classified programs essential to national security are at issue — it’s better to leave them out of the courts, and out of the public eye.

If the phone companies broke current law under FISA, they should pay the price for doing so.

I don’t think the phone companies could violate FISA. Only the President could do that.

The way I read the FISA law, surveillance of representatives of foreign governments is permitted without warrant, particularly when we’re at war, and the definition of “foreign government” in this case allows the inclusion of al Qaeda. That we’re actually in a Constitutionally-valid state of war was confirmed in Hamdan v Rumsfeld, 2006. Thus, as long as there’s reasonable suspicion that we’re listening to embedded agents of al Qaeda or some similar terrorist group, no warrants are needed and the program is entirely legal, enjoying the broadest possible Constitutional leeway because of Congress’ agreement. I know that’s a controversial reading, but it’s also a plausible one.

July 14, 2008 @ 8:31 am #

Phil, from Dodd’s speech”

“Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple “splitters” into a secret room controlled exclusively by the NSA.”

Phil, the provisions were there in FISA to go and request a warrant for wiretapping any suspected foreign agent – and there should be no doubt that he would have been granted the warrants. There was one reason not to do so – he was aiming for far more than that, and the spectre of lawsuits to protect privacy that would expose WHAT he was doing looms large.

Jim

July 14, 2008 @ 3:37 pm #

“Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple “splitters” into a secret room controlled exclusively by the NSA.

First of all, the documentation I’ve seen only validates that there’s a single, sealed room run by NSA, not that every message gets copied through it. Secondly, what you’ve described is technologically consistent with what the NSA said they were doing. If they’re scanning for keywords or for known sources/destinations, they have to scan everything and then select whatever they hit, that’s how it’s done. If they need immediate access when a call is identified, they can’t wait to go ferret out the right link, they need to know immediately where the link is — and again, that requires routing like what you’ve described. Did you really think the NSA could be listening to terrorist calls without immediate access to the calls?

This is legitimate national security surveillance. If you’ve got more detailed knowledge than this, let me see it. I don’t trust Sen Dodd farther than I can throw him.

Phil, the provisions were there in FISA to go and request a warrant for wiretapping any suspected foreign agent – and there should be no doubt that he would have been granted the warrants.

In what way does “they could have gotten warrants” respond to “There was no legal need for warrants?” Did you even READ what I wrote? There was no FISA requirement for warrants in the first place, so what the hell does it matter if he could have gotten warrants or not?

In the second place, though, what you’re saying is false. They actually tried to get warrants at first, and the FISA court, apparently prompted by Clinton appointee George Robertson, required modifications on more than 170 warrants, something that had never been done since the passage of FISA in 1978. The FISA judge, in actual fact, re-implemented the “wall” between domestic and foreign intelligence, completely in violation of the will of Congress. So, whoever told you that “they could have easily gotten warrants” either had no idea what they were talking about, or was lying to you. You need new sources.

This was why “in re Sealed Case”, the first and, to my knowledge, only case ever heard by the FISA Review Court, had to be decided — and it was decided clearly in favor the Executive’s inherent right to wiretaps of foreign agents without warrant from a FISA judge. And it was on the basis of this decision that the Bush administration proceeded with its legal program of wiretaps without warrants from the FISA Court. Does this sound like an administration intent on sidestepping the law?

Jim, you’ve been listening to liars who have a clear agenda. You absolutely must recognize the agenda at work, because it explains the reason for all the accusations — they just want to have a reason to call Bush a criminal, arguably because it was so easy, and so true, to call Clinton a criminal. So they INVENT causes. They’ve been trying for the past 7 years, nonstop. All their causes have been false. So is this one. So I’m saying, in the name of truth, you need to approach claims of Presidential misprision with a much higher degree of suspicion. This is not a PARTISAN demand, it’s a CHRISTIAN one. You cannot let vicious liars use you.

If you want to raise a debate over whether it’s possible to protect ourselves without letting the NSA scan a huge volume of messages, that seems like a legitimate debate. You should raise it. It’s not necessary, not by half, to accuse a clearly honorable President of “shredding the Constitution” in order to have that debate. But a reasonable debate was never really the goal.

July 14, 2008 @ 4:54 pm #

Hey Phil -

I didn’t mean to frustrate you. You should consider me as a good sample of someone who has a real life, who is also trying to take enough time to really understand this issue. Dismantling the legitimate parts of your argument from the senseless bludgeoning of people was a chore in this post!

I take your Christian challenge seriously – and will strongly consider each source I come across. Fortunately, Joe is one of those you have no reason to write off as a “vicious liar”. I trust him more than you, of course…but I know him as a friend. I go by the maxim that power corrupts, and I am just as unlikely to trust someone from the left side of the aisle as you are to distrust someone from the right.

My GREATEST concern is just what you said here:

“If you want to raise a debate over whether it’s possible to protect ourselves without letting the NSA scan a huge volume of messages, that seems like a legitimate debate. You should raise it.”

Like Senator Dodd, I do not doubt that Bush has done what he has in order to protect the country. I have severe questions about cashing in our identity as a country to protect ourselves, as I believe this violation of privacy does.

I don’t have the consistent time or energy to enjoin this debate, however. But something about your original post smacked of putting on the blinders to my Maxim in the case of the Bush administration, and I will call for clarification when I have time.

July 14, 2008 @ 5:06 pm #

Phil -

Ignore that sentence that sounds like a jab:

“I am just as unlikely to trust someone from the left side of the aisle as you are to distrust someone from the right. ”

I ended it originally with “as you are”, but stupidly stuck the rest on the end. I have seen no evidence in what you write of that.

Jim

July 15, 2008 @ 10:24 am #

Update – from Salon.com

“A Bush-41-appointed Federal District Judge yesterday became the third judge — out of three who have ruled on the issue — to reject the Bush administration’s claim that Article II entitles the President to override or ignore the provisions of FISA.”

http://www.salon.com/opinion/greenwald/2008/07/03/al_haramain/

Realizing you’ve already poisoned the Greenwald well, the stuff there is well worth considering – whatever his motivations.

July 15, 2008 @ 3:04 pm #

You’re giving me pretty good ammunition for my ongoing claim that Salon.com is a backwater of partisan loons.

The first judge in the “three who have ruled” was Carter appointee Anna Diggs Taylor. If you’ll read my overly long post from today, you’ll hear my observation that Taylor’s decision, which Greenwald is quoting, is the most widely derided judicial decision I’ve ever encountered, and that includes Roe v. Wade. I didn’t read anybody aside from Greenwald who didn’t recognize Taylor’s ruling as partisan nonsense that was completely free of judicial reasoning, either good or bad. Scott Johnson from Power Line, who teaches law, says if he received that decision from a sophomore in one of his classes, he’d give it a failing grade. Even Volokh, who actually thinks Bush’s program is illegal, thought the decision was laughably bad. I’ll be glad to send you links if you’d like to read what various legal geeks had to say about that decision.

The second in his three judges was a MINORITY of three judges who gave an offhand comment that had no bearing on the case he was ruling on. Follow the link from Greenwald’s article and you’ll see — it wasn’t even really a decision. The guy was one of three reviewing the Taylor ruling (yes, the same laughable ruling mentioned in the previous paragraph) who voted to overturn because the plaintiffs lacked standing. He agreed that they had no standing, but decided to write “If I had to rule on the decision, I’d agree with Judge Taylor,” basically classifying himself as a partisan with no concern for legal reasoning, since there was none in the decision he was reviewing, and he had no reason even to mention it. This, Greenwald calls “One of three judges who have RULED on the matter.” See how precise and honest he is?

I haven’t read today’s decision yet, but from Greenwald’s own description, it sounds like the reasoning had nothing to do with the government’s arguments defending the NSA wiretap program, and everything to do with what they argued about that specific case, which sounded a little nuts. I’ll be glad to check it out and let you know what I find.

July 15, 2008 @ 4:34 pm #

darkhorse –

I read through the District court’s decision in Al-Haramain v Bush. I think I’m a little over my head here, so I’m going to withhold judgment until I see the take from Greater Minds Than Mine. However, from what I read, the decision was entirely about a claimed conflict between FISA and a common law “state secrets exemption,” which has to do with withholding classified documents in a court case. Apparently the government was claiming that the state secrets privilege prevents the plaintiff from requiring them to release the details of what they gathered by surveillance, and the court said “No, it doesn’t, FISA pre-empted the state secrets privilege.”

If I’ve read this right, Greenwald is in the weeds — the decision has abso-bloody-lutely nothing to do with the government’s claim of an overriding Article II privilege to surveil without warrant. That question was not resolved, or even considered.

But, as I said, I’m in over my head here, and I could easily be wrong.

November 19, 2009 @ 5:14 pm #

[...] Leftists historically love to use courtroom rules as a vehicle to produce documentary evidence regarding government “misbehavior” as they perceive it. This was the motivation behind the dozens of lawsuits filed against phone companies for cooperating with the Bush administration in eavesdropping on possible terrorists, as I discussed here more than a year ago. [...]

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