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Published on Sunday, July 6, 2008 by Salon.com

The Political Establishment and Telecom Immunity -- Why It Matters

by Glenn Greenwald

Nancy Soderberg was deputy national security advisor and an ambassador to the United Nations in the Clinton administration. Today, she has an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty. The entire Op-Ed is just a regurgitation of the same trite, vague talking points which the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. But it's the language that she uses -- and the brazenness of the lying (and that's what it is) to justify this bill -- that's notable here.

It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:
The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target. 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.
I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how 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. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:
But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
Nancy Soderberg and the rest of our political establishment about to immunize telecoms for having broken the law simply don't believe in those principles. And they're saying so explicitly. To them, the President's order to break the law both should and must be obeyed. Where did they learn that? So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.

Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. 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. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:
We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government. So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.

As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.

So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
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. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here. * * * * *

Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:
But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.
As everyone acknowledges, this bill effectively compels the district courts to dismiss the lawsuits against telecoms without any examination of whether the law was broken. Yet, in praising this bill, she says the bill gives telecoms "the right to have their cases reviewed in district court" -- as though they're being denied that "right" now, and as though the bill restores that right. Is it even possible to describe telecom immunity more dishonestly, with more Orwellian deceit, than that?
Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.
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.
Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.
What she snidely dismisses as "lawyer-like caution" exercised on "a case-by-case basis" is called "obeying the law." That's what we want people to do; that's the whole purpose of law.
The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.
The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.
The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.
This is the most flagrantly dishonest claim she makes, which is really saying something. The bill does the exact opposite of what she claims. It does not "allow[] the courts to determine the legality of these actions." It bars the courts from doing so in the case of telecoms, while ensuring that the Bush administration remains protected from judicial review by all sorts of procedural obstacles such as "standing" and "state secrets" that Congress is choosing to do nothing to address. The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?

* * * * *

What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.

Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:
LEGAL BEDROCK THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .

The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .

Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.
Our Congress, with the political and media elite cheering, is about to violate every one of these principles. They are taking away from the judiciary the power to adjudicate allegations of lawbreaking. They are creating a two-tiered system of justice in which our most powerful corporations can break the law with impunity and government officials remain immune from consequences. And they are, in unity, spewing rank propaganda to the commoners -- who continue to be subjected to the harsh punishment for violations of the law and one of the world's most merciless justice systems -- in order to convince them that granting license to our political and corporate elites to break the law is necessary for their own Good and for their Safety. * * * *

Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.

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.
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