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Published on Thursday, January 24, 2008 by Salon.com

Jay Rockefeller's Unintentionally Revealing Comments

by Glenn Greenwald

As the Senate takes up "debate" today over granting the President new warrantless eavesdropping powers and granting immunity to lawbreaking telecoms, the individual who joined forces with Dick Cheney to get this ball rolling, AT&T's personal Senator Jay Rockefeller, made some comments yesterday to The Politico that illustrate just how twisted and dishonest is the thinking of telecom immunity advocates. First, there is this:

Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.) is predicting the Senate will grant retroactive immunity to telecommunications companies as Congress takes up reauthorization of the Foreign Intelligence Surveillance Act (FISA). . . "I think we will prevail," Rockefeller said on Wednesday, adding that he hoped the Senate will finish the bill by next week. The FISA legislation expires in February, and both President Bush and GOP congressional leaders have demanded new legislation be in place by that time.

"It's a pretty bad idea to appear cocky," Rockefeller noted. "I am not pessimistic."

For an entire year, Congressional Democrats have won absolutely nothing. They've given in to the White House on every one of its demands. Yet here is Jay Rockefeller strutting around declaring Victory and having to battle against feelings of cockiness because, finally, he is about to win something. But ponder the "win" that is giving him these feelings of immense self-satisfaction. Is he finally accomplishing what Democrats were given control of Congress to do: namely, impose some checks and limits on the administration? No. The opposite is true. Rockefeller is doing the bidding of Dick Cheney. The bill that he is working for is the bill the White House demanded. Rockefeller is supported by the entire Bush administration, urged on and funded by the nation's most powerful telecoms, and is backed by the entire GOP caucus in the Senate.

When Rockefeller smugly announces that he "thinks we will prevail," the "we" on whose behalf he is so proudly speaking is Bush and Cheney, lawbreaking telecoms, and all Republican Senators. The only parties whom Rockefeller is so happily "defeating" are civil liberties groups and members of his own party. That is what is making him feel pulsating sensations of excitement and "smugness."

He is being allowed to win only because he is advancing the Bush agenda and those of his largest corporate donors, and waging war against members of his own party, acting to destroy the allegedly defining values of that party. Yet he's so desperate to feel like he's won something that this is enough to cause him to strut around giddily battling feelings of cockiness over his impending "win." At least he's being honest here about whom he represents.

Next we have this:

Rockefeller also rejected a potential compromise being floated by Sen. Dianne Feinstein (D-Calif.) that would let a secret FISA court decide whether the telecom companies, who are being sued for going along with official requests from the Bush administration to cooperate with warrantless surveillance programs, acted properly.

Telecoms already have immunity under existing FISA law where they acted pursuant to written government certification or where they prove they acted in good faith (see 18 USC 2520 (d)). There is no reason that the federal courts presiding over these cases can't simply make that determiniation, as they do in countless other cases involving classified information. Even Feinstein's "compromise" is a completely unnecessary gift to telecoms: to transfer the cases away from the federal judges who have ruled against them to the secret FISA court. But even that pro-telecom proposal is unacceptable to Rockefeller (and the administration), because that would still leave telecoms subject to the rule of law. Rockefeller's only goal is to bestow on his telecom supporters full and unconditional protection from having their conduct -- and, by effect, the administration's conduct -- subject to a court of law. Manifestly, that's the real agenda. That's why he's feeling "cocky."

It gets worse:

Rockefeller defended the actions of the telecom companies, arguing that the companies received explicit orders from the National Security Agency to cooperate with the super-secret surveillance effort. The West Virginia Democrat said the telecom companies were being "pushed by the government, compelled by the government, required by the government to do this. And I think in the end, we'll prevail."

Can someone please tell Jay Rockefeller that we don't actually live in a country where the President has the definitively dictatorial power to "compel" and "require" private actors to break the law by "ordering" them to do so? Like all other lawbreakers, telecoms broke the law because they chose to, and profited greatly as a result. That telecoms had an option is too obvious to require proof, but conclusive proof can be found in the fact that some telecoms did refuse to comply on the grounds that doing so was against the law. There is a branch of Government that does have the power to compel and require behavior by private actors. It's called "the American people," acting through their Congress, who democratically enact laws regulating that behavior. And the American people enacted multiple laws making it illegal (.pdf) for telecoms, in the absence of a warrant, to enable Government spying on their customers and to turn over private data. Rockefeller's claimed belief that we live in a country where private companies are "compelled" to obey orders to break the law is either indescribably authoritarian or disgustingly dishonest -- probably both.

Finally, we have this bit of pure mendacity:

Rockefeller added: "If people want to be mad, don't be mad at the telecommunications companies, who are restrained from saying anything at all under the State Secrets Act. And they really are. They can't say whether they were involved, they can't go to court, they can't do anything. They're just helpless. And the president was just having his way."

Rockefeller's claim that telecoms can't submit exculpatory evidence to the court is flat-out false, an absolute lie. There is no other accurate way to describe his statement. Under FISA (50 USC 1806(f)), telecoms are explicitly permitted to present any evidence in support of their defenses in secret (in camera, ex parte) to the judge and let the judge decide the case based on it. That section of long-standing law could not be clearer, and leaves no doubt that Rockefeller is simply lying when he says that telecoms are unable to submit secret evidence to the court to defend themselves:

[W]henever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

How much clearer could that be? Directly contrary to Rockefeller's claims, federal courts are not only able, but required ("shall"), to review in secret any classified information -- including evidence over which a "states secrets privilege" has been asserted -- in order "to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." Federal courts already have exactly the power that Rockefeller dishonestly claims they lack. Moreover, even if that provision didn't exist (and it does), and even if Rockefeller were telling the truth when claiming that telecoms were unable to submit exculpatory evidence to the court (and he isn't), then Congress could just easily fix that problem in one day. All they have to do is amend FISA to make clear that telecoms do have the right to submit such evidence to defend themselves notwithstanding the President's utterance of the all-powerful magic phrase "State Secrets." And then this oh-so-unfair problem would be instantly fixed.

If telecoms were really these poor, "helpless" victims unable to defend themselves, the solution isn't to bar anyone from suing them even when they break the law. The solution, if that were really the concern, is simply to add a provision to FISA enabling them to submit that evidence in secret, the way classified evidence is submitted to federal courts all the time. The reality is that 50 USC 1806(f) already says exactly that, but even if it didn't, Congress could just amend it to do so.

Rockefeller's claims also entail the core dishonesty among amnesty advocates. He implies that the real party that engaged in wrongdoing was the President, not telecoms, yet his bill does nothing to enable plaintiffs to overcome the numerous obstacles the administration has used to block themselves from being held accountable. If Rockefeller were being truthful about his belief that it's the administration that should be held accountable here, then his bill would at least provide mechanisms for ensuring that can happen. It doesn't, and thus results in nothing other than total protection for all lawbreakers -- including administration officials -- who committed felonies by spying on Americans for years without warrants.

Democrats have failed repeatedly to end or even limit one of the most unpopular wars in American history. They have failed to restore habeas corpus. They have failed to fulfill their promise of "fixing" the hastily-passed Protect America Act. They even failed to provide children's health insurance even though their entire party and much of the GOP favored it. They don't feel the slightest bit ashamed or remorseful about any of that.

Yet here is Jay Rockefeller, feeling proud and cocky and triumphant, because he is about to vanquish members of his own party and civil liberties groups on behalf of a radical agenda of amnesty for lawbreaking corporations and warrantless eavesdropping powers demanded by Dick Cheney, AT&T and Mitch McConnell. I suppose he needs to find his self-esteem somewhere. But there shouldn't be any doubts regarding on whose behalf Senate Democratic leaders are working. When Rockefeller says "we will prevail," he's telling you as clearly as he can whom they represent.

UPDATE: California's Courage Campaign has an excellent critique of the "compromise" amendment which Diane Feinstein plans to introduce to transfer the cases against telecoms to the secret FISA court and allow them to be shielded from immunity if they can prove they acted in "good faith." That site also has a fairly thorough summary of the procedural events likely to occur today. Feintsein's press release on her amendment -- which seems to have some chance of passing -- ">is here.

Feinstein's amendment indirectly provides immunity to telecoms while pretending not to. As demonstrated, telecoms already have immunity under the law if they can prove they acted in good faith, and there is absolutely no reason whatosever to transfer these cases away from a real federal court (that operates largely in the open, with both sides present, though with the ability to review evidence in secret), to a compeltely secret, one-sided court (only telecoms and the Government would be present) that is renown for deciding blindly in favor of the Government.

In any event, Feinstein's amendment would almost certainly be vetoed by the White House, which (like Rockefeller) is demanding unconditutional immuninty. I actually prefer the much more honest and open approach of Bush/Cheney full-scale immunity to Feinstein's deceitful approach. If they're going to do this, it's preferable to have it happen all out in the daylight, clear as can be what they're actually giving to telecoms and how they're protecting both governmental and corporate lawbreakers. A loss here can at least have the beneficial effect of serving as a potentially mobilizing event, unmistakably demonstrating just how lawless and corrupt our Beltway culture has become. Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

© Salon.com

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