Three Oft-Cited Reasons for Supporting Telecom Amnesty that Aren’t

I happen to think the FISA bill is a terrible piece of legislation — and not just because of the telecom issue — but I am pretty sure it’s going to pass.  That’s not what this is about.

What this is about is the reasons I’m hearing from various highly-placed public officials why I and America need this so-called compromise. Do they take me for a fool?  Yes, they take me for a fool.  Either that, or they are banking on the entire American public being as civics-impaired as rumored.  In any case, we’re being played, possibly in the hope that if they say enough soothing things about why America needs FISA because national security requires it we’ll get bored with the whole thing or frightened and drop it.  (I mean, who really believes anymore that we have any privacy?  Not me.) 

In the piece I will be discussing (from Salon), constitutional lawyer Glenn Greenwald specifically addresses arguments made by Nancy Soderbergh in her L.A. Times op-ed.   I am focusing on her op-ed and Greenwald’s response because the arguments she makes in it are the same arguments I keep hearing from those who support the bill.   

In his article, Greenwald examines — and sees off — several of the typical rationalizations for telecom amnesty.  I’ve listed the three he discusses that annoy me the most.  I highly recommend reading both the op-ed and Greenwald’s entire, carefully reasoned response.

THE ‘HEAVY HAND OF GOVERNMENT’  RATIONALIZATION.   This one seems especially popular.  Do Soderbergh and others who make similar arguments really believe what is implied by the following or are they just hoping that civics-impaired Americans believe it?

In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance — the administration’s effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration’s written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."

We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power. (LA Times; emphasis added by GG)

I mean, I get that after seven and a half years of Bush Inc. people might have come to think this way.  Fortunately,  it’s not true.  The president can’t  just order telecoms or you or me to do anything.  Even Dick Cheney can’t.

Greenwald comments:

[H]ow did this warped and distinctly un-American mentality get implanted into our public discourse — that the President can give "orders" to private citizens that must be complied with?

Soderberg views the President as a monarch — someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal. That just isn’t how our country works and it never was. We don’t have a King who can order people to break the law.  (Salon)

I would say something snarky about the fact that Soderbergh was deputy national security advisor under the Clinton Administration, if I hadn’t heard other highly placed current public officials, many of them Democrats, solemnly reciting the same nonsense.

THE ‘DON’T BLAME THE VICTIM’ RATIONALIZATION.  Soderbergh, like many others, argues that the telecom companies didn’t do anything wrong except knuckle under to government. Wrong.  The telecoms which cooperated — and not all did — weren’t victims of oppression; they broke laws specifically designed to regulate their industry because they judged it was in their interests to do so.

Greenwald:

Soderberg repeats the standard Democratic excuse for immunizing telecoms — that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."

This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke — not just after 9/11, but for many years — were written specifically to restrain how telecoms cooperate with Government spying requests…

Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren’t only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That’s why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled.. (Salon)

THE ‘NATIONAL SECURITY REQUIRES IT’ RATIONALIZATION.  Soderbergh argues that we must give the telecoms immunity from civil liability because otherwise they won’t help us in
future when we need them to.

I’ve heard that one too and not just from Soderbergh.  Do people not even understand what FISA is for? 

Greenwald:

Under the law — both the current FISA and the new bill — telecoms are legally required to comply with lawful requests from the Government. They don’t have the option to "refuse to cooperate." What she’s actually saying here is indescribably Orwellian — that telecoms had the obligation to obey Bush’s illegal orders to allow government spying, but they have the option to ignore legal warrants to do so. That’s exactly backwards — there is no danger that telecoms will "refuse to cooperate" because they are required to do so when the government requests are legal. (Salon)

Where do ordinary citizens get their wrong ideas about their right to privacy, the powers of the executive, and a citizen’s obligation to comply with the law (as opposed to the directives of public officials)? ?  From government officials, it seems, who don’t really know what they’re talking about and are parroting some party line — or who have made a deliberate decision to blind the public with fake political science.  Or both, I suppose. 

So I’m sure the Dems who caved on FISA have their reasons.  They’re just not the ones they’re telling us..

And that I find distinctly worrying.