Protect America Act and GOP: Telco Pork
This is why it is absolutely critical that the House Democrats keep pushing House Republicans to come to the table and negotiate changes to FISA that do not give the telephone companies immunity for agreeing to warrantless wiretaps. Here’s a a transcript of a Bill Moyers interview with Mickey Edwards and Anthony Romero. Romero is Executive Director of the ACLU; Edwards served as a Republican Congressman for 16 years. They appeared together on Moyers’ The Journal to discuss their absolute objection to telecom immunity in the Protect America Act on constitutional and legal grounds. Here’s an excerpt:
ANTHONY ROMERO: I think the rules have to be made by Congress with consultation with Congress and with the judicial branch, the Foreign Intelligence Surveillance Court and the federal courts. But the idea that the executive branch on its own has the power and the capacity to bypass the judicial branch, as it did now with this new FISA bill, or to completely bypass Congress, as the president did in authorizing the National Security Agency’s spying program, really rubs counter to some of the basic tenets of our democracy, Bill.
MICKEY EDWARDS: You– you ever watch these carnivals where we’re, you know, you have the shell game and you hide the little pea under the shell and you move it around? Well, that’s what the president’s doing. The issue is not protecting us against terrorism. We all want to–
ANTHONY ROMERO: We all agree with that.
MICKEY EDWARDS: –protect against terrorism. You know, it’s a matter of how it’s done, whether you have to do it lawfully, whether you have to get a warrant. The old FISA act said, “Hey, do it.” And you– if there is a big rush and you have to surveill quickly, you don’t have time for a warrant, do it and then come back and convince the court and let the court retroactively, you know, give you the warrant. So nobody was trying to stop this from happening. What the president wants to do is cut Congress out of it, cut the courts out of it, get rid of the requirement in the Constitution to get a warrant. You know, the–
I recommend downloading the whole show because Moyers also interviews Jack Goldsmith, former head of the Office of Legal Counsel, where he describes the culture of intimidation rampant in the Administration, most particularly by Dick Cheney and David Addington (be sure you read the New Yorker profile, too).
Here’s just one example of what can happen when wiretaps without accountability are sanctioned:
There’s a young man, Kot Hordynski, he’s a remarkable young man. College student. Was organizing protests against the government and the war in Iraq.
And all of a sudden he finds himself on the TALON database, the Department of Defense database, labeled as a credible threat against the nation. And here you have this 20-year-old college student doing nothing more than just handing out flyers and having posters. He turns on his computer and he reads in an MSNBC Web site that he is labeled a credible threat to the nation.
Now, just a couple of weeks ago we find the Department of Defense closes down that TALON database. The worries that I have is that we don’t know what other types of databases have been created. And especially the powers that are granted to the government with this new FISA bill allows for the cases like Kot Hordynski to exist that we may not know about for– until decades to come.
Today, the EFF reports that House Republicans have decided they will not negotiate, arguing:
How do you compromise on something like granting liability for a telecommunications company? You can’t. If we do not give liability protection to those who are helping us, they won’t help us. And if they don’t help us, there will be no program. And if there’s no program, America is more vulnerable.
…See, what the American people must understand is that without help from the phone companies, there is no program. And these companies are going to be subject to multi-billion dollar lawsuits by trial lawyers, plaintiffs’ attorneys. And it’s going to drive them away from helping us — unless they get liability protection — prospective and retroactive.
Once again, this argument ignores the fact that it’s not a question of WILL when legal warrants are obtained. Whether the telecoms WILL help is not an issue when they are served with a legal warrant because they MUST. The only way this argument gets any legs is if you interpret the phrase “help us” to mean going beyond the scope of a legal search warrant, which is precisely why there should be no immunity for the telephone companies.
In case you’re still not convinced, try listening to Moyers’ October 26, 2007 show on Power and the Presidency, where Bruce Fein defines the stakes:
BRUCE FEIN: Take for instance the assertion that he’s made that when he’s out to collect foreign intelligence, no other branch can tell him what to do. That means he can intercept your emails, your phone calls, open your regular mail, he can break and enter your home, he can even kidnap you, claiming I’m seeking foreign intelligence there is no other branch – Congress can’t make it illegal, judges can’t say this is illegal. I can do anything I want.
Finally, consider the Administration’s position on the outcome of the Pakistani elections. Even after Musharraf has been soundly defeated in the current elections, the Bush Administration is pressing for him to remain in office, despite the protests of high level State Department officials. The pressure from the Administration belies the idea that he supports democracy and free and fair elections, since the Pakistani elections were observed by UN observers, including US Senators.
The argument for keeping Musharraf and subverting the will of the Pakistani voters? He’s been “a strong ally in the war on terror”. This is the hallmark of the dishonesty of the Bush-Cheney administration — screw democracy and constitutional law whenever it might stand in the way of the “war on terror”. Does that mean that they will not surrender the White House next year if Barack Obama is elected, because he has vowed to end the war in Iraq?
Call or email your representative and push them to stand firm on FISA and telecom immunity — No immunity for warrantless wiretaps. Period.
The impasse and any resulting security holes are the responsibility of those who will not bifurcate immunity from the proper procedures under the US Constitution and Bill of Rights. A grant of immunity is the biggest pork award this administration could deliver to the telephone companies, and their hypocrisy should be exposed for what it is — an attempt to shield the administration itself from the illegal and unconstitutional acts of war they’ve perpetrated on us all over the last seven years.
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