Category Current Affairs

Congress Needs to Consider Retroactive Immunity for Telecom Companies…For A Price

I’m still pondering McConnell’s interview, discussed in the previous post, and it strikes me that he said something which opens a potential level for the Congress to use as an investigatory tool.

McConnell’s top priority for Congress on revising FISA legislation is gaining retroactive immunity for the telecom companies who have assisted the NSA with the illegal wiretapping program over the last five years:

Now if you play out the suits at the value they’re claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . .

The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We’ve got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was alright, look, we don’t want to work that right now, it’s too hard because we want to find out about some issues of the past. So what I recommended to the administration is, ‘Let’s take that off the table for now and take it up when Congress reconvenes in September.’ . . . No, the retroactive liability protection has got to be addressed.

Glenn Greenwald is right, I think this is the first time a top official has pretty much admitted the complicity of telecom companies in the illegal wiretapping program. And that gives the Congress a possible plan, an investigatory path into the lawlessness of this Administration, and beyond, into Executive overreach in general (as previously discussed.)

When Congress returns, it should re-convene hearings on the FISA legislation, especially since that “six month” clause forces them to re-authorize or re-examine. In the process, they should indeed address retroactive immunity for the telecom companies.

The price for retroactive immunity must be full, public, and complete cooperation by the telecom companies. Not disclosing technical detail; any hearings that require sensitive information as part of testimony will naturally follow the usual rules for classified briefings and testimony. But policy decisions and directives from the Administration and especially the White House must be fully and publicly disclosed. On the record, under oath.

No oath, no testimony, no immunity. And no CEO, after their respective boards of directors get done with them. Regardless of political affiliation, political donations, or ties of friendship, no telecom company CEO and its board will pass up the deal. Major shareholders, mutual funds, and the holders of corporate debt won’t let them.

And we’ll get the testimony and hearings we need in order to shape FISA law in accordance with both constitutional principles AND the exigencies of our current situation.

And we’ll see what happens once it’s all out, on the record. Everyone, even a President with the track record of this one, is innocent until proven guilty. But let’s just say the data isn’t trending in the right direction for Mr. Bush. Or will the Republicans decide this is their “Barry Goldwater visits the Oval Office” moment?

McConnell: Americans Will Die Because We Discussed Wiretapping….?

In recent comments to the El Paso Times, Director of National Intelligence Michael McConnell has apparently claimed that even discussing the legality of our wiretapping and electronic surveillance program will result in the deaths of Americans:

    Q: Even if it’s perception, how do you deal with that? You have to do public relations, I assume.

    A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we’re doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.

    Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?

    A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing. We need to have the debate.

This is a pretty bizarre twist on the whole wiretapping discussion, and really has to call into question McConnell’s own claims of being "apolitical."   Americans will die as a direct result of having Congressional debate on the subject?  Seriously?

Apparently, McConnell’s "reasoning" (and we’ll use that term loosely for the duration) is that debate in Congress informs our enemies about our tactics and capabilities.  Of course, there’s a point to secrecy about detailed capabilities and tactics, and Congress and the Executive Branch have in place practices for closed hearings and briefings, and for handling law-making concerning classified activities.  These practices appear to work, as far as any of us can really tell. 

But at a high level — the level we’d read about in the news — I’d be shocked to hear that anyone doesn’t know that the NSA routinely monitors electronic communications internationally, and has done so for decades, across many generations of technologies.  After all, the NSA is an outgrowth of WWII signals intelligence groups. 

Or we might assume that folks overseas, including perhaps the bad guys, had read James Bamford’s history of the NSA, "Body of Secrets:  Anatomy of the Ultra-Secret National Security Agency," (a good book by the way), or his previous book, The Puzzle Palace.  Or you could extrapolate from fiction and entertainment and watch the Will Smith/Gene Hackman action thriller Enemy of the State.   Or literally dozens, if not hundreds, of other sources. 

Really.  Seriously.  McConnell clearly knows, as the former director of the NSA itself, and a player in D.C., that (1) the bad guys know we tap phones, monitor email and other electronic transactions, and gather a variety of other non-human-source intelligence, and (2) Congressional debate will be on the legality and processes involved in authorizing such activities, not the details of the technology for acquisition and processing.

So nice try, Mr. McConnell, on the "I’m apolitical, just doing my job" bit.  I’m not buying it.  Your comments are, at best, a misstatement.  At worst, they’re deliberately inflammatory hogwash of the kind we keep seeing from this Executive Branch, which will say anything to avoid having oversight, rules, or statutory limits to its authority.

 

Taking Impeachment Seriously

Over the last year, I’ve gone from not wanting the Democrats to waste political capital on impeachment proceedings to feeling that the effort is critical to the health of our democracy.  I think I’m ready to articulate why, and more importantly, outline the issues for which I still believe that the normal electoral process is the more appropriate cure.  This "sea change" in my thinking on the issue corresponds roughly to a change from thinking tactically about the 2006 election to thinking more broadly about the health of our democratic progress, although that tactical thinking was simply wrong from a constitutional standpoint — no matter what the stakes in that election.  I’ll also recommend John Nichol’s excellent small book, The Genius of Impeachment:  The Founder’s Cure for Royalism.  I started writing this before I read Nichols, and in fact I bought his book precisely because it’s got great references to early English custom and American history that I hope to use in arguing my case, but I strongly recommend his treatment, which is obviously better documented, more detailed, and often much better written than my comments below.   

In short, I’ve become convinced that impeachment proceedings against President Bush and Vice President Cheney are not just the appropriate remedy for the massive executive overreach we’ve seen in the last eight years, but an essential corrective for ensuring that future administrations — Democrat or Republican — do not simply continue where Mr. Bush leaves off.  Given massive expansions of executive power during the 20th century, and especially from Nixon onward (including the Democratic Clinton Administration), we have ample evidence that normal electoral process is insufficient as a corrective to executive overreach.  Stronger medicine is required.  And fortunately, strong medicine is precisely what the Founders gave us, in the form of impeachment.

Invertebrate Democrats and “Warrantless Wiretapping”

As the details of precisely what the "Protect America Act of 2007" contains start to be analyzed, it’s pretty clear that Congress ought to be ashamed of itself.  Moving beyond the Newspeak name of the bill itself, it’s pretty clear that this law violates the Fourth Amendment. 

Marty Lederman, writing at Balkinization, analyzes the key ambiguities in the Senate version of the bill:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.;no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

There are many aspects of electronic surveillance which present serious constitutional "grey" areas, and as a society we haven’t even begun to discuss these issues seriously.  But one issue is not grey, and I highlighted it in bold in Lederman’s analysis.  The Fourth Amendment requires that people (by which we can read "citizen" or "legal resident" although it’s not clear whether the Founders wished that distinction to be made) be immune from search (which now includes electronic search or surveillance) without a due process requirement that demonstrates the "reasonableness" of the search, which hundreds of years of Anglo-American legal tradition, American constitutional law, Congressional and state statute, and Federal case law says means probable cause, judicial consideration and issuance of warrants

Congress, in its second most spineless act in quite awhile (the Military Commissions Act and restriction of habeas corpus was worse), has ratified the Administration’s previous warrantless wrongdoings and gutted the Fourth Amendment in a wide variety of situations.  So why did a Congress cut the Judicial Branch out of the loop and give the Executive Branch the power not only to legally conduct surveillance on U.S. citizens, but also to be the arbiter of when it was acceptable to conduct such surveillance?

My guess is that Congress has shown yet again that the "potential attack on American soil" trump card works every time:  no rational discussion of threats and potential courses of action is possible when the opposing side can shout you down with the simple mention of 9/11.  The major challenge we face in American politics today is getting beyond sloganeering so we can have a rational national discussion about how we are conducting the defense of the Republic against criminal and military threats we face.  Congress will not do this by itself:  right now the 16 Democrats in the Senate (and others in the House) that voted for this unconstitutional bill likely did so because they’re afraid for their re-election prospects if they don’t vote to give the President every power he asks for, should something happen.

J.K. Rowling and a Morality Tale for Modernity

Having just finished the seventh and final book in the Harry Potter series, I want to record some thoughts about the “shape” the series has taken, and how Rowling’s work fits into, and comments upon, the modern condition. I’ll try to do so without “spoilers,” since I know many folks haven’t read book 7 yet or at least haven’t finished it.

It seems clear to me that Rowling’s series will have an enduring place in both the fantasy and children’s canons, in much the same way that Tolkien does, and for many of the same reasons. Naysayers aside, Rowling has created a deeply imagined world, and although she may not have actually written a grammar for Parseltongue or endless volumes of back history notes, the world itself is rich enough to interest children and adults alike as long as the genre itself remains part of our shared cultural heritage.

Her legacy as more than fantasy, more than children’s literature, however, depends entirely upon the relevance of her themes to the concerns adults face in our society — as with so much literature. And I need to add that I discuss Rowling along these lines only because she herself appears to have invited such comparisons by writing a series rich in historical parallels; by writing a morality tale steeped in modern life.

As I finished Rowling’s final book in the series, I was reminded immediately of Richard Rorty’s commentary upon Orwell’s historical legacy:

Orwell’s best novels will be widely read only as long as we describe the politics of the twentieth century as Orwell did. How long that will be will depend on the contingencies of our political future: on what sort of people will be looking back on ours, on how events in the next century will reflect back on ours, on how people will describe the Bolshevik Revolution, the Cold War…..Someday this description of our century may come to seem blinkered or shortsighted….Our descendants will read him as we read Swift — with admiration for a man who served human liberty, but with little inclination to adopt his classification of political tendencies or his vocabulary of moral and political deliberation….In the forty years since Orwell wrote, as far as I can see, nobody has come up with a better way of setting out the political alternatives which confront us. Taking his earlier warnings against the greedy and stupid conservatives together with his warnings against the Communist oligarchs, his description of our political situation — of the dangers and options at hand — remains as useful as any we possess. (Richard Rorty, Contingency, Irony and Solidarity, pp. 169-170).

One need not have read the seventh and final book to understand the shape of Rowling’s allegory (but naturally, the force of it becomes much clearer as one sees the details of Voldemort’s return and rise to power). I do claim, though, that Rowling has done a superb job in describing a particular phenomenon: the ordinariness and mundanity of tyranny’s origins.

The Lord of the Rings may inspire us, and we may see in it the quintessential struggle between good and evil, but very little of Tolkien’s morality tale is of much use to us today. We simply do not describe modern life the way Tolkien did, and thus in Rorty’s words we read him as we read Swift. Rowling’s tale, on the other hand, was crafted precisely to describe us. The Wizarding world is palpably our own, with an overlay of magic — but even the magic is law-like and “ordinary” (i.e., wizards must work for basic necessities, and cannot simply conjure food or shelter).

Most importantly, over the course of the series, but especially from book 4 onwards, we are treated to a compressed history of 20th century absolutisms. Dark power has reigned in the past, but was conquered by an alliance of the good. Years later, people are tired of grand struggles and appear more than ready to dismiss all the signs of evil’s return. Vested interests combine with those who simply wish to protect their skins (e.g., the Malfoys), or are in denial (e.g., early Dolores Umbridge?) to wield the power of media, the state, and peer pressure to deny that anything is amiss. Those who preach vigilence against the return of evil are dismissed as fools or worse. Only a few are truly committed — either to evil or to fighting its return. And because most are simply seeking “the quiet life,” the actual battles, when fought, are the province of a tiny minority who fight on behalf of their different visions of society.

I’m not claiming that Rowling literally replays the history of the 20th century for us in the Harry Potter books. She doesn’t. But, at least to me, there are elements (especially in the final book, which I won’t spoil) which recall the Nuremburg Laws, Hitler’s rise to power, and to look for wider parallels, the search for “purity,” whether racial or national. Nor are the triumphs of the left ignored: Hermione’s long-standing crusade on behalf of house-elves (even more critical in the last book) mirrors the 20th century civil rights movements and its cultural offspring, with the message that democracy and freedom depend upon equality and inclusiveness. The latter point will sound like a bit of a stretch, until Book Seven.

Clearly it’s possible to read the Harry Potter series without hearing serious echoes of Kristallnacht. But for an adult, with basic familiarity with 20th century history, it seems difficult to read the series and ignore its essential point: our vulnerability comes from complacency and comfort, but so does our security, because only our relative abundance and our freedom of speech allows us to expand our moral universe to include those traditionally excluded: the Muggle-born, house-elves, goblins, and giants, and in our world, those of different colors, beliefs, and cultures.

Rowling has written the morality tale for modernity, and indeed likely for our “post-modern” century as well, because “evil” in our world tends to come in the same form as hers: the belief that purity — of one sort or another — is the cure for our dissatisfaction, and that diversity, hybridity, and difference are weakness. As long as we continue to describe our struggles and dangers in the same way, as long as those who seek to destroy liberal democracy (in the broadest sense of the term) do so in the name of a hypothetical, “pure” state of religion, culture, or race, we will still have much to learn from J.K. Rowling.

President for a Day…?

On second thought, I’m going to wish President Bush well with his colonoscopy tomorrow. I hope it goes smoothly, and above all, quickly. Dick Cheney really is going to be President for a good chunk of tomorrow, and it appears that at least the wingnuts are happy about that fact. Suggestions at the NRO’s blog for Dark Lord Acting President Voldemort’s Cheney’s “to do list” include:

Bomb Iran.

Commute the sentences of those border agents.

Fire Mike Chertoff.

Tell Harry Reid to … well, you know…

Pardon Scooter

Of course, I strongly doubt that Cheney will actually do anything too serious tomorrow, except in a real emergency situation. Apart from telling Harry Reid to…well, you know…few of these things wouldn’t have major consequences. And that would just hurt the GOP further in their attempt to run a serious presidential campaign (although I hear that Mr. None Of The Above is finally pulling ahead of the pack in the latest polls….).

But just the same, I’ll be keeping my eyes peeled for the Dark Mark signs of misbehavior on the part of the Veep, who isn’t known for his mild temper and sunny disposition (or his aim, according to his duck-hunting buddies).