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

July 5th, 2008
By DAMOZEL

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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.



This entry was posted on Saturday, July 5th, 2008 at 12:35 pm and is filed under Bush Administration, US Constitution, Legal Matters, Domestic Surveillance, Civil Liberties, FBI, War On Terror, George W. Bush, Senate, Law & Legal Matters. You can leave a response, or trackback from your own site.

Viewing 17 Comments

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    NO to junk lawsuits! Ah, refreshing.
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    I don't know enough to comment on the details of the FISA bill, but I assume that one of the constraints to a fuller discussion is the problem of having open discussions about national security related issues. Maybe the none-to-persuasive points trotted out by officials are merely standing in as superficial, somewhat-tangential descriptors of more persuasive or arguably legitimate purposes.

    For example, there are certainly methods that are illegal under existing wiretapping laws that would be extraordinarily helpful in identifying persons of interest in counterterrorism efforts--eg, broadbased computerized searches of connections and patterns within networks and the like. (Apologies if this point is utterly unconnected to the legislation.)

    So is there a line to be drawn that this bill gets right or wrong or is it necessary to adopt an absolutist approach in order to fully protect individuals' privacy rights? I have no idea, but we do make such compromises with most of our constitutional rights and there seems to be a lack of back-and-forth on these fundamental questions as opposed to what are (I think) less important issues, such as the retroactive immunity for telecoms (which, as Greenwald admits, is pretty moot considering the difficulty of bringing such suits and the swiftness with which they would be dismissed).

    I do think, though, that accusing telecoms of cooperation primarily out of greed seems a tad sensational without some persuasive evidence (not that it would surprise me, mind you) .
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    We now Know that the laws that prevented the citizens of DC from owning handguns were unconstitutional and therefore I propose that all those government officials including all mayors who enforced the laws be subjected to lawsuits and that additionally they be tried for conspiracy to deny citizens their constitutional rights.

    Walter Walter Washington
    Marion Barry
    Sharon Pratt Kelly
    Anthony A. Williams
    Adrian Fenty

    All of these Mayors should be tried for obeying the laws that were before them. In addition all city council members who conspired against the citizens of DC for their duplicity in continuing to enforce a law that was unconstitutional should also be named in the law suit.
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    Neocon, I don't think there's any relationship between following a law that was legally passed by the appropriate bodies and later declared unconstitutional and ignoring the laws that you know are written into the books. In the first case, people were following the law; in the second, they weren't.
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    Great.
    Lets's live in fairy land. Let's pretend we all have perfect privacy and owning guns will eliminate crime.

    Maybe we can turn the clock back to the 1600's while we're at it.

    Living in the world as it is TODAY,I have no patience for people who spout absolutist slogans without absolutely taking responsibility for the consequences.

    Gun lovers, please move to Wahsington DC and bring gun violence under control, in beween court dates to answer charges of reckless endangemrent and wrongful death, that is. Show everyone how it's done, instead of just spouting off at your keyboards.

    FISA haters, write the law that will protect the country against terrorist plots while ensuring your perfect privacy.
    There are legitimate compalints about how law enforcement and the CIA have misused the law, and those can be tackled one by one. There is no need to throw the baby out with the bathwater., unless you live in a fairyland where everything is sunshine and roses.

    Take action. Take responsibilty for something besides moaning and groaning!

    Rights come with responsibilities.
    We've heard a lot about rights, now it's time for responsibilities.
    Instead of being backseat drivers, step up to the plate, propose what should be done, not just what shouldn't be done.
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    BTW.
    Telecom immunity is a separate issue from the FISA bill as a whole.

    I hope the immunity will be stripped. from the bill, but I reject making this an argument against the bill in its entirety.
    As i said, let's tackle the problems with FISA, one by one and not drown the essence in the details.
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    runasim, I've seen no evidence that the FISA laws needed to be rewritten. The only justification Gonzalez could ever come up with for changing the law was that it was inconvenient to go to the court. That's not much to give up rights for. The existing law already allowed a secret court, 99% approval of requests, and the right to tap phones without a court order for a designated amount of time. We are revising the law and getting extremely little for it.
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    Pacatrue,
    That there is a law is no small thing.

    The problems with wiretapping arise from abuses both by the executive and by personnel, There were many..
    Having a law means there is at least some standard by which abuses can be measured.

    What could be done without the law didn't really matter, because existing rules and guidelines were being ignored, anyway.

    It's also a starting point. Practice will show how things work out, what needs to be altered or deleted or added. In the meantime, there is at least some standard for saying: " You can't do that. It's against the law."

    I think you are right, in that he law was largely written to give cover for that which was being done anyway. The task at hand was then, to legalize the necessary parts of wiretapping without legalizing the unnecessary parts. That's an impossible task these days , as you know, if you follow how Congress works these days. The Dems need a supermajority to pass a resolution about lunch menus.
    It came down to having a bad law or having no law.

    For the resons I stated, I think having a bad law is less dangerous to rights in the long run than having no law. It's also a realistic acknowledgement that modern terrorism is real world wide and extremely difficult to detect.

    I'm less panicked about rights, because of a historical perspective. In times of angst, societies always overreact, and then they work themselves out of it in gradual steps. The notion of 'gradual'appeals to me,becasue it's the only way to hold the country together,instead of having riots in the aisles of the Senate and the streets. I hope to see a gradual dialing back, and I think it will happen if the Dems gain more Senate seats.
    To be considered also is what would happen should another attack occur. My guess is that there would be another clamor to return to worst practices, maybe even worse than anything we've seen so far.

    On top of everything else, we are really talking very much in the abstract. No one knows what the real usable information from these wiretaps has been, if not in arrests then in tracking plots and connections .here and leading to other countries. Finding out how terrorists work is as important as finding specific terrorists.
    A more useful fight to take up would be a fight for information, so that we know what we're talking about. Now it's all about fears, suspicions, allegations and extreme opinions.