Don’t Cry For The Telcos – Bush & Cheney Are The Only Ones That Are Dying For Immunity

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The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both Read more →

Will The House Honor Their Oath To Office, Or Follow The Senate’s Lead And Cave To Fear?

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Some of us, okay, I am referring to myself, thought that FISA was cooked yesterday (really, I have thought this from the second they announced the unanimous consent agreement and bi-partisan extension baloney) and that the fork might as well be stuck in. As I said in the last thread,

…the House is putting on what appears to be a better showing than the Senate, but I have no doubt that it is all kabuki and the deal is done. I am pretty much positive that Pelosi, Hoyer and Boehner have their skids all greased and did so in conjunction with Hanoi Harry and the Senate Stumblebums. It is good to keep in mind that ALL of the representatives are up for election (only a third, give or take a few, of the Senate), so they have a vested interest in putting on a show. When the curtain closes, the final act will have been the same though.
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Remember, we thought there was at least a fighting chance in the Senate, and then all those eloquent and moving words by Chris Dodd, all followed by a whopping 29 Senators having the one ethical bone in their bodies to protect the constitution. Depressing. There is no way the House is going to squelch this after the Senate did that.

I still believe that analysis, but I will have to say that the House has put on a better show today than I expected, even after seeing the John Conyers letter issued evidencing that a little fight might be left in the old boys after all.

Cboldt had this to say last Saturday about the interplay between the Senate and House:

This latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much

The number of signatories, and their general “place” in the hierarchy of power, inclines me to think they are being “humored.” Their objection and voice can’t be blocked, and while it’s good to let them express their point of view, I’m not sure there is enough weight of objection in the House as a whole.

Yes, the right things are being said. But not by many.

The procedural details are in accord with the substantive material (e.g., contents of amendments, UC agreement) and a vote breakdown that heavily favors capitulation to the DNI demands. I wouldn’t be shocked if there was another extension, as a token political concession to the objectors, but I don’t expect Congress to send another extension to the WH.

I Read more →

House Oversight Committee Liveblog – Rocket’s Red Glare

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Folks, I have been a pitiful guest host the last two days, and for that I apologize. There was a medical issue in my family that arose on Monday and it has turned into a nightmare. This country needs to find it’s way to a single payer universal healthcare process as soon as possible; else otherwise rational citizens are going to exercise that much ballyhooed Second Amendment right to bear arms and they are going to use them on the health insurance industry. That is all I am going to say for now; perhaps I will revisit all of this at a later date, but what I have seen and been exposed to the last day and a half is eye opening. Even to someone that deals with bad systems as a career, it is eye opening when it is actually you and your family in the breech.

A couple of people have inquired about a liveblog on the Clemens hearings. I was initially fairly uninclined to do that here because we usually deal with more important subjects. But I am fed up with FISA and the dereliction of duty of our Congress on that issue. I also have some time on my hands for a while today and think that there are many issues that really are important that are in play in the Clemens mess; so here we go. I will be posting some updates to the main post and will be here ready to engage and answer any question i can, the best I can in the comments. Feel free to rant and to question.

Update On Constitutional/Due Process Concepts At Play Here: Okay, even I am about Clemensed out after today’s hearing, but I want to take just a minute to point out the legal principles I see at play here that I think should be understood and kept in mind.

First off, if the Federal government thinks Roger Clemens was seriously involved in steroid and HGH use and promulgation, investigate and prosecute him. But the government doesn’t give a rat’s ass about that, they are hot after Clemens because he had the audacity to challenge the God/Petraeus like Mitchell report. And make no mistake about it, if you can’t believe the Clemens portion of the Mitchell report, you have to wonder about the Read more →

FISA Liveblog And Trash Talk Thread Tuesday 2/12/08

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Another day, another sellout. That may actually be a good question to ask to ask any Congresscritter you can get your hands on, or voice to, over the next eight months. "What was you personal price for selling out the Constitution and my privacy? As a taxpaying constituent and citizen, I am entitled to an honest answer; what was your price?" What are the odds that even one single critter gives an honest answer? About zero is my guess. Document the atrocities as you see them today, I will be in and out, as I believe Marcy will be. A good lawyer always makes a record for appeal, even when he or she is losing miserably. So, make a record; Phred demands it! Because we are certainly going to be appealing what our Senate, and Congress, is doing to us and our Constitution by their cancerous and derelict actions on FISA.

FISA Liveblog And Trash Talk Thread Monday 2/11/08

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RevDeb and Selise ask for a forum for discussion of the FISA debate currently on CSPAN-2; who am I to say no? Discuss away my fine friendlies…….

The NRCC Meltdown: An Introduction

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I haven’t commented on the FBI investigation of the NRCC treasurer, Christopher Ward yet because, well, because this damn FISA bill is taking all my time.

Top House Republicans were told in recent days that a former employee of their campaign committee may have forged an official audit during the contentious 2006 election cycle and that they should brace for the possibility that an unfolding investigation could uncover financial improprieties stretching back several years, according to GOP sources briefed on the members-only discussions.

But let me make some initial points and then illustrate and then I’ll do a follow-up post on just one example of what I suspect the FBI is investigating.

  • Per the Politico, Christopher Ward has been doing the NRCC’s books since 1993–that is, since the "Contract with America" cycle and since the Republicans started marching in neocon lockstep
  • Per RawStory, Ward also worked for a finance firm that has done the books for a bunch of other GOP entities, including the Swift Boaters
  • Per Politico, a number of Congressmen for whom Ward served as treasurer have already announced their retirement

It just so happens that I just finished Allen Raymond’s How to Rig an Election in preparation of the FDL book salon for tomorrow. So I read this passage–in which Raymond described his brainstorming for a new online political consulting firm–just as this scandal was breaking.

If all it took to get venture capital for a political dot-com was a shitty idea, hell, I could easily exceed the standard.

The first one I had was to develop an online currency exchange where the Republican national campaign committees, such as the RNC, and its affiliated state parties, could log in and trade hard money for soft and vice versa. When I ran the idea by Curt Anderson, he said, "What are you, fucking crazy? This is the stuff that’s suppose to happen in the dark of night."

"Why shouldn’t it be transparent?" I reasoned. "It all gets filed in FEC reports anyway."

"Allen, no one’s going to buy it." He was right. THe currency exchange that happened almost daily between the national Republican organizations and the state parties was the equivalent of Scarface turning drug cash into Treasury bonds. No one would want to be on record doing it.

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Dick’s Big Stick and the Democratic Alpha Male

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Well, darnit. I got forwarded the Lizza column and assumed it was recent. It’s not. So Lizza should not remember the Cheney comment, because it happened after Lizza’s column. I apologize to Lizza, but not that the manly men Dingell and Murtha were, in fact, in Congress already when Lizza wrote the column. 

Ryan Lizza must have forgotten that Dick Cheney insinuated Nancy Pelosi had emasculated John Murtha and John Dingell.

Cheney, in an interview with Politico, said Murtha (Pa.) and Dingell (Mich.), two of the most powerful House Democrats, "march to the tune of Nancy Pelosi," adding that "they are not carrying the big sticks I would have expected."

That’s because Lizza has discovered, as if it were new, the Democratic Alpha Male.

The members of this new faction, which helped the Democrats expand into majority status, stand out not for their ideology or racial background but for their carefully cultivated masculinity.

"As much as the policy positions is the background and character of these Democrats," says John Lapp, the former executive director of the Democratic Congressional Campaign Committee who helped recruit this new breed of candidate. "So we went to C.I.A. agents, F.B.I. agents, N.F.L. quarterbacks, sheriffs, Iraq war vets. These are red-blooded Americans who are tough."

Mr. Lapp even coined a term to describe these manly — and they are all men — pols: "the Macho Dems."

The return of Democratic manliness was no accident; it was a carefully planned strategy. But now that the Macho Dems are walking the halls of Congress, it remains to be seen whether they will create as many problems for Democrats as they solved. After all, these new Democrats have heterodox political views that could complicate Democratic caucus politics, and their success may raise uncomfortable questions for those Democrats who don’t pass the new macho test.

Call me crazy, but to suggest that John Murtha isn’t a manly man is as much a slight to his long-term service in the Marines as when Mean Jean called Murtha a coward. And one of the biggest reasons why I have John Dingell representing me in the House, rather than Lynn Rivers, is because Dingell is a hunter’s hunter–a better shot than Dick Cheney, I’d wager.

Somehow, these two manly men have survived–even flourished–in the House for a combined eighty-five years. Yet Lizza would have you believe the Democratic Alpha Male is a recent fad.

Emptywheel’s Famous Football Trash Talk* Super Bowl XLII Edition

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Well, Championship Sunday was a bit of a letdown. No one claimed the much prized Hubcap, the Pack packed it in, LT was MIA, and nobody noticed that the asterisk was still in the title. There sure has been a lot that has happened since, most of it having to do with the most famous foot in the world. That foot would, of course, belong to Brady, Sir Tom. Uh oh, this just in, hot off the wire (Oh my, this is really rich, heh heh):

BREAKING NEWS: HAGGIS DEMANDS SENATE INQUIRY INTO PATRIOTS SPYGATE SCANDAL; COMPARES MATTER TO TORTURE TAPES DESTRUCTION!

The ranking Republican on the Senate Judiciary Committee wants N.F.L. Commissioner Roger Goodell to explain why the league destroyed evidence related to spying by the New England Patriots.
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In a telephone interview Thursday morning, Senator Arlen Specter, Republican of Pennsylvania and ranking member of the committee, said that Goodell would eventually be called before the committee to address two issues: the league’s antitrust exemption in relation to its television contract and the destruction of the tapes that revealed spying by the Patriots.

“That requires an explanation,” Specter said. “The N.F.L. has a very preferred status in our country with their antitrust exemption. The American people are entitled to be sure about the integrity of the game. It’s analogous to the C.I.A. destruction of tapes. Or any time you have records destroyed.”
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Mr. Specter first wrote Mr. Goodell about the tapes on Nov. 15. … The league responded to Mr. Specter late Thursday afternoon.
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“It’s premature to say whom we’re going to call or when. It starts with the commissioner. He had the tapes, and he made the decision as to what the punishment could be. He made the decision to destroy them.”

Mr. Specter said it had not been determined when Mr. Goodell would be called before the committee.

Jeebus, I don’t even know what to say. I kind of thought we had seen governmental actors functioning at the outer boundaries of surreality yesterday with Mukasey, but I should have known better than Read more →

For Fear Of Fear – Part One

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It has been an exciting and fascinating two days, yesterday and today. It has been the best, and worst, of American democracy in action. The thrill of victory; the agony of a weak defeat, snatched from the strong jaws of victory. Yesterday we were giddy with the knowledge that the Democratic Senate Leadership had actually stood up, not just to the Bush/Cheney/Republican cabal of maximum everything in wiretapping and privacy invasion, but in the name or the Constitution and righteousness. Today, reality came crashing back down to earth for those of us in the reality based community.

Yesterday, the Senate led by Harry Reid and the Democrats fought off cloture and a vote on the contemptible Jello Jay Rockefeller crafted SSCI FISA Update Bill that, in addition to other ills, provided immunity to Dick Cheney, George Bush, other Administration malefactors and, as somewhat of an afterthought, participating telcos. That was a good thing. There were already whispers and scuttlebutt of a "brief extension" of the truly contemptible Protect America Act. As I have argued for some time now, there are inherent problems with such a "routine brief extension".

I repeat what I said yesterday on this “brief extension” nonsense. It is nothing but sheer political posturing that brings us down to the level of the Repuglicans AND weakens our case at the same time. Take a stand for the proper principles, and stand behind them as opposed to injecting harmful BS for the sole sake of cornering your opponent; which is a fine and appropriate tactic, if it doesn’t undercut your core principle in the process. Here, it will weaken the core principle and argument in it’s favor and should NOT be considered; especially since it is not necessary “to protect us” in the least, and blindly saying that it is so necessary is ridiculous.

NO EXTENSION! There is no need whatsoever for an extension, because A) The Administration can order any comprehensive program, or programs, they want prior to the lapse of the PAA and that program(s) will stay in effect for one full year “to protect us”; and B) the original FISA law is reinstated. Furthermore, passage of any extension is a wolf in sheep’s clothing because is equitably removes and/or weakens many arguments and defenses that opponents, like us, to the PAA had from it’s original passage in August 2007. At the Read more →

Anti-Immunity Porn

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Senators Dodd and Feingold aren’t waiting for Monday to keep fighting the good fight on FISA. Feingold has issued the following statement:

The conduct of Senate Republicans yesterday was shameless. After weeks of insisting that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object to a one-month extension of the Protect America Act, they obstructed all efforts to actually work on the bill. Now they want to simply ram the deeply flawed Intelligence Committee bill through the Senate. They refused to allow amendments to be offered or voted on, including my straight-forward amendment to require that the government provide copies of FISA Court orders and pleadings for review in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. If the Republicans succeed in cutting off debate on Monday, the Senate won’t even get to vote on the amendment Senator Dodd and I want to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration’s illegal wiretapping program.

Democrats should not allow the Republicans to ram this bill through the Senate without amendments. Monday’s cloture vote will be a test of whether the majority is willing to stand up to the administration and stand up for our rights. [my empahsis]

And Dodd just finished kicking some serious ass on the floor of the Senate. He has called those who claim the telecoms will go out of business "amateur economists" and pointed to AT&Ts huge profits. He explained, "the point of immunity is to challenge Bush’s assertion that he is the law." And he accused the telecoms of using the Nuremberg defense. Finally, after listing all the abuses of power that can’t be undone–including the destruction of the torture tapes and AGAG’s lies before Congress, he described immunity as one thread that we can use to combat the Administration’s abuses. "We can grab hold of the one thread left to use here and pull on it until the whole garment unravels."

Update: Whitehouse just finished speaking. Two of his best lines were, the Administration "couldn’t be troubled to get a court order, to protect these companies they’re so concerned about now" and if we pass telecom immunity, "we are taking away real rights of real Americans that are being litigated in courts right now. I don’t know if Congress Read more →