Hey Senators! What About Immunity for Former Qwest Officials
As I pointed out in this post, the Senate Intelligence Committee used a remarkable argument to justify giving the telecoms immunity in their FISA bill. Basically, it argued the telecoms could neither prove or disprove whether they were entitled to immunity according to existing statutes, because the mean old Bush Administration had invoked State Secrets. And therefore, the invocation of State Secrets put them in an unfair position as they tried to defend themselves against lawsuits.
To the extent that any existing immunity provisions are applicable,however, providers have not been able to benefit from the provisions inthe civil cases that are currently pending. Because the Government hasclaimed the state secrets privilege over the question of whether anyparticular provider furnished assistance to the Government, anelectronic communication service provider who cooperated with theGovernment pursuant to a valid court order or certification cannotprove it is entitled to immunity under section 2511(2)(a)(ii) withoutdisclosing the information deemed privileged by the Executive branch.
[snip]
Providers who did not assist the Government are similarly unable toextract themselves from ongoing litigation, because the assertion ofthe state secrets privilege makes it impossible for them to demonstratetheir lack of involvement.
So the logic, in general, is that it is unfair for a defendant in a civil suit to be prevented from defending itself because the government has invoked State Secrets and thereby prevented the defendant from introducing the evidence that would prove its innocence or its immunity.
Of course, the Senate Intelligence Committee is only making that argument in the context of its desire to convince telecoms to cooperate with the government, regardless of the laws that are supposed to guide that cooperation. I’d bet you that, if a defendant were unable to defend itself from lawsuits because the government invoked State Secrets, and if that defendant had not cooperated with the government in illegal wiretapping, no one would bat an eye at the injustice.
Well, we’re going to get to see just that in the civil suit against Joseph Nacchio and other former Qwest officials. Because there, the government is invoking State Secrets in a case against individuals who refused to cooperate because–at least Nacchio claims–they believed cooperation would have been against the law.
It’s almost enough to make one suspect that Nacchio’s legal woes are retribution for his lack of cooperation.
But that would assume massive politicization of the Department of Justice, which Very Serious People tell us did not happen, or isn’t a big deal even if it does.
Please return to your blogs. Nothing to see here.
Everything for the next 14 months, and I mean everything, is about Covering Bush’s Ass – no matter who else gets hurt.
The Power-Mad Hateful Demi-God nearly succeeded in destroying our Country, from the inside, with a Secret Plan to Subvert the Government by Invoking Absolute Power on a Pretext of Ideological Survival against an ’Enemy’ living in Mud Huts.
And, now, Our Congress is trying to sweep its Weakness under the rug and Keep the Clean-up Secret – no matter who else gets hurt.
Bush pocketed Congress’ balls on 9/12, and if they want them back, they’ll have to dance just like he says until Bush walks out the door on 1/20/09 with No Liability for Fucking-Up America and the World.
Bush has no prinicples, except Absolute, Uncontestable Power – and Our Congress can only say, â€Yes, my Lord!†– in secret – while Crying Like Pathetic Weaklings in Public.
My understanding of the situation is that Congress’s willingness to compromise is due not to the Blue Dogs per se, but the possibility that the Administration has pulled a giant J. Edgar Hoover and has the leadership and several top Democrats dead-to-rights in various picayune campaign finance or sex-scandal implications. That’s also why they’re able to get so many GOPers to vote against SCHIP and their own best interests; doubtless they knew all about the dirty doings of their various caucus members, and used that against them as leverage. I think that’s what’s in the Veep’s famous walk-in vaults.
The Dems can’t jump the shark and impeach Bush or Cheney because in whipping the Blue Dogs it’s bound to get out what they’re going to do. The administration can’t unleash the DOJ on the Dems because of the politicization scandal. They’re in a precarious embrace and have only little skirmishes here and there, with recess appointments and funding pissing contests, rather than an all-out war where everybody would lose.
The really intriguing thing to me is the spate of resignations, Card-Gonzales-Rove, and others, that simply must have something to do with all this. Is an IG somewhere too close to the truth?
Not just Qwest/Nacchio – think all the GITMO cases.
Here’s the nuts and bolts on that though.
When last I looked, the telecoms themselves had not filed one objection to the invocation of state secrets by gov. So obviously, they aren’t clamoring for the courts to strip away that privilege layer.
Secondly, no one can determine if the privilege has been invoked in violation of the existing Executive Order – much less the existing case law – unless and until a court reviews the activity to see if it s illegal. That’s the one question I haven’t heard mentioned from the bench and a position I haven’t heard pushed hard enough from the plaintiffs.
Does Gov agree that the Executive Branch cannot violate the law and/or Constitution and evade judicial review of their illegal activities by invoking state secrets?
No one is pushing that to the point it needs imo and I’m not quite sure why.
No one is pushing it because the answer is so frightening.
I’m under the impression that the US has not actually passed a state’s secrets law like what the UK has, and instead is somewhat of a tradition. But causing damage to â€foreign relations†is a valid reason to invoke it? Can this be anything more than a â€making Bush look bad damages national security†kind of logic?
Thanks K – that is, I guess, the best answer to the unasked. *g*
Well, seriously. People approach the question every so often when the Senate is grilling an Attorney General or an Attorney General nominee. They get answers that are pretty blunt, and then they pretend they didn’t mean what they meant.
Senator Feingold asked Alberto Gonzales basically whether these idiotic constitutional theories meant the president could ignore the law, and Gonzales told him he was asking a hypothetical question. Feingold was asking in particular about electronic eavesdropping, and chose to take the answer to mean we weren’t doing any electronic eavesdropping of the kind he was asking about, even though he asked the question precisely because people were beginning to realize that we were doing exactly that.
Gonzales, of course, meant that the question was hypothetical because he was being asked if the president could break the law, and it is his belief that that is definitionally impossible.
Feingold chose not to hear that. Probably because hearing it meant standing alone, again, waiting for other Senators to acknowledge hearing it. Which they won’t.
Mukasey gave the same answer to pretty much the same question. And who heard that? Nobody. And now he’s the Attorney General.
Asking these questions gets embarrassing after a while.
EH
Thanks for pointing that out; I was struck by that too. It rather lowers the bar a bit, doesn’t it, that now it doesn’t even have to be secret, just damaging to our foreign relations. I suspect they don’t want much of the info Nacchio has already revealed out bc (they claim) they don’t want Europe to realize we’ve got wide networks of fiber that they pretend not to know about on their land.
I know some in Congress have done the Tongue Tied Tango, but I’m looking for it more particularly in the pleading and arguments to the court.
Seldom is the Executive Order even mentioned, but I think that it clearly purports to do the Judiciary’s job – interpret what is or is not illegal – in connection with classification.
So I think that it devolves into a very simple fire, but one where no one is dragging DOJ’s feet. First and foremost they need to be on the record, in representations to the tribunal, that illegal activities cannot be classified. Then they need to be on the record in answering how it is determined, once there is a good faith basis for challenging the legality of a gov program, the issue of legality is resolved. Who interprets the law in an adversarial setting? One of the â€sides†to the dispute – – or the court.
And the bright shiney’s clouding the issue of whether or not gov used a technoligical approach that it does not want to disclose, as a â€state secretâ€, when it violated the law and the Constitution – is something that can be addressed pretty easily IMO. It’s like saying that Cheney shot someone in the face using a top secret laser gun instead of a shotgun. You can redact and seal the technical information about the nature of the gun without having to pretend the shooting didn’t take place. A court might have to hear sealed testimony that would stay sealed on the capacities and technology of the weapon to get at issues of, for example, Cheney’s intent (maybe the laser gun makes people’s head look like a big caged quail, for example)
Still, that’s all bright shineys and completely removed from – – details of the technology used to accomplish the actions aside, where the actions illegal.
How often does anyone explain the exact details of manufacturing and physic re: how a gun works and does a jury need to understand that to find someone guilty?
FWIW – I’ve got to head out the door but, OT a bit, here’s an op ed that goes to the â€secret†OLC opinions.
http://www.nytimes.com/2007/11…..ref=slogin
Based on what little I know, opinions of counsel had to be made public and with privilege removed in order for anyone to be able to even try to claim reliance on those opinions as a part of a good faith defense. That’s if good faith can even be a defense in the facts and circumstances.
They probably also don’t want anyone to be forced to ask whether or not we’re mining data from traffic in and out of foreign embassies and consulates.
This is and intersting discussion about president-at-war and the law, and his application of the state secrets privilege on criminal and civil litigation.
First they’ll act and then you learn about it. And then they’ll act again.