Over the past several months, Democratic Senators Jay Rockefeller and Harry Reid have been the two most valuable instruments in the Bush administration's efforts to obtain vastly expanded warrantless eavesdropping powers and immunity for lawbreaking telecoms. As the Senate returns to Washington next week, Reid is apparently now more determined than ever before to ensure that the Bush administration's FISA demands are complied with in full.
Contrary to the completely erroneous claims by the Wall St. Journal Editorial Page that Senate Democrats intend to enact an 18-month extension of the Protect America Act without telecom immunity (false claims that produced some premature blogospheric declarations of victory last week), Reid has spent the last two weeks making abundantly clear that his intention is to bring to the Senate floor as early as next week the Bush-compliant Senate Intelligence Committee bill, and has further made clear that it's his expectation that that bill -- complete with warrantless eavesdropping powers and telecom immunity -- will pass. Because the Protect America Act is scheduled to expire in early February, it will be necessary to extend it by 30 to 60 days, but that is seen by the Senate Democratic leadership only as a tool to enable them to work out a deal with the House to ensure that a bill acceptable to the President is sent to the White House promptly.
From all appearances, Sen. Dodd is as committed as ever to doing what he can to stop telecom immunity (thus giving the lie to the jaded claims from Reid and others that he was doing this only to help his presidential bid) -- including full-scale filibusters and other forms of procedural obstructionism. But thanks to Reid's decision to bring to the floor the immunity-providing SIC bill (rather than the immunity-denying SJC bill), it will be exceedingly difficult for Dodd and his allies to strip immunity out of the bill by amendment (60 votes would be required to overcome a certain filibuster of any such amendment). Thus, Bush and Cheney -- with the subservient loyalty of their key allies, Rockefeller and Reid -- appear, at least as of right now, highly likely to prevail in their twin goals of warrantless eavesdropping and telecom immunity.
None of this is particularly surprising. As The Washington Post's Dan Frookmin aptly put it yesterday in his online chat:
West Union, Iowa: What's your take on how the upcoming FISA renewal will play out? Dan Froomkin: I'm betting on Bush beating the Democrats into submission again. So far, that's been a safe bet.
Indeed, as a general matter, betting on Democratic Congressional submission to Bush's demands is one of the surest bets there is. And with Reid and most of the Senate Democratic leadership specifically committed to delivering yet another victory for Bush and their telecom owners on the FISA bill, "uphill battle" is an understatement for describing the challenge which proponents of the rule of law face. As Froomkin put it on a separate, recent occasion in his column: "Historians looking back on the Bush presidency may well wonder if Congress actually existed."
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Despite all of this, there will be, in the next couple of weeks, several points of focus. Initially, the leading presidential candidates have been all but silent with regard to all of this. That's particularly striking because this is a real, live issue that implicates their ostensible commitment to "changing how Washington works" -- it's nothing more than telecoms using their power, influence and bipartisan lobbyists in Washington to write extraordinary legislation for themselves that bequeaths them with immunity for having broken the law.
Manifestly, retroactive immunity is something available only to the largest, lobbyist-using corporations, and is not something that ordinary Americans would ever even get a hearing on. It's as illustrative a case of core Beltway corruption as it gets. Yet as Clinton, Obama and Edwards parade around rhetorically proclaiming their "leadership abilities" and their willingness to fight vested interests in Washington and to defend the rule of law, they abdicate one opportunity after the next to demonstrate their authenticity. Taking a real stance against such a corrupt gift to the telecom industry -- through real leadership rather than the obligatory, forced issuance of meaningless statements -- seems like a rather compelling way for at least one of those candidates to distinguish their campaign.
As Matt Stoller recently documented, telecoms have become increasingly brazen about the fact that they essentially own multiple members of Congress. They began pouring money and other favors into the coffers of Jay Rockfeller at exactly the same time that they began cajoling him (successfully) to become the leading advocate for telecom immunity. Telecoms have on their payroll hordes of bipartisan loybbists and advisors working for immunity, including former Clinton officials such as Jamie Gorerlick.
Beyond that, immunity would be a complete evisceration of the rule of law, bizarrely protecting telecoms from the consequences of their lawbreaking and putting an end to any real hope for investigating and obtaining accountability for years of illegal spying on Americans by the Bush administration. When you put all of that together, telecom immunity embodies every form of lawlessness and corruption which are destroying our political culture -- everything that the Democratic presidential candidates endlessly claim in pretty speeches they are committed to fighting.
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There are other important points to note here as well. Chris Dodd is already being pressured (and vaguely threatened) by cowardly, anonymous Democratic Senate aides, who are leaking smarmy and thuggish nuggets suggesting that Dodd can get back into the good graces of his caucus only if he gives up his whole flighty, annoying fixation on the Constitution and the Rule of Law. He's going to need ongoing support and reinforcement.
The House actually passed a relatively decent FISA bill that has real protections on eavesdropping and denies immunity to telecoms, and it's possible that they will be a leverage point as well (though it's more likely that the Bush-supporting "Blue Dogs" will ultimately throw their support to the Senate version). Additionally, certain Senators who have supported telecom immunity -- such as Dianne Feinstein and Sheldon Whitehouse -- have been toying with the idea of some kind of "compromise" whereby the Federal Government stands in as defendants for the telecoms, though a far superior compromise would simply be to amend FISA to clarify (even though it's already clear) that telecoms are free to submit any exculpatory evidence in secret to the federal court presiding over lawsuits against them (more on that later).
In his stump speech, Barack Obama pledges to end what he calls "Lewis Libby justice." Immunity for lawbreaking telecoms is the extreme expression of that. In fact, the ability of the rich and well-connected to obtain immunity from lawbreaking is one the hallmarks of corrupt oligarchy, one of the surest signs of the breakdown of basic justice. From The History of Rome, Cary & Scullard, 3rd edition, 1975. p. 494:
...this change of procedure was accompanied by the increasing use of different scales of punishments according to the person of the delinquent. For purposes of criminal jurisdiction the citizen body fell into a class of honestiores (including members of the Senatorial and Equestrian Orders, municipal magistrates and senators, and soldiers of all ranks), and another of humiliores. For the same crime a privileged offender might suffer simple banishment, an unprivileged one would be sentenced to penal servitude in the mines; in capital cases the honestior would be put to death quickly and cleanly, the humilior might be thrown to the beasts. A person of higher status still enjoyed the right of appeal to the emperor, and he remained exempt from torture, except in trials of treason ... but these privileges were withdrawn from those of the lower order. From the time of Severus [early 2nd Century] the principle that the law was a respecter of persons pervaded the whole of the Roman criminal jurisdiction, a rule which constituted one of Rome's most harmful legacies to the Middle Ages.
The Senate Democratic leadership, working hand-in-hand with the Bush administration, is working feverishly to ensure that telecoms benefit from exactly this corrupt and lawless framework. There are still some opportunities to try to prevent those efforts, or at least make them much more public, difficult and costly.
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.