Telecom immunity: Jay Rockefeller's unintentionally revealing comments

by Glenn Greenwald, Salon.com

As the Senate took 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.

*

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 completely 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 unconditional immunity. 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.

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Rockefeller is flailing around with such dishonesty that his two principal claims are completely contradicatory. On the one hand, he claims that telecoms did nothing wrong because they were "compelled" by the President's orders to cooperate in his warrantless surveillance programs and had no choice. On the other hand, he claims that without retroactive immunity, telecoms won't cooperate in the future.

Those two claims plainly contradict one another. If (as Rockefeller claims) the President can force telecoms to cooperate, then there can't be any danger that, in the future, they will refuse to cooperate, since they don't have a choice. None of this makes any sense but the fact that his two primary arguments are in total contradiction to one another illustrates the level of his dishonesty.

Listening to this "debate" is enough to make one become a revolutionary. After endlessly praising Rockefeller, Kit Bond took to the floor to explain that subjecting telecoms to any court of law -- even the secret FISA court -- would risk disclosure of our Secrets and would subject these companies and their employees to attacks by the Terrorists. By this reasoning, there can never be any such thing as illegal classified programs. If we don't trust courts to rule on Secret Behavior by our government officials, then it means that there is no rule of law for them. That, of course, is the whole point here.

And also, Bond ended with a very moving explanation that we have to pass this bill because of The Troops; otherwise The Terrorists will kill them.

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Bill Nelson, who is co-sponsoring Feinstein's amendment, said he expects all amendments to fail because they won't get the 60 votes required (i.e., the Dodd/Feingold amendment to strip immunity and the Nelson/Feinstein amendment), but he also expects that the House will refuse to pass a bill containing telecom immunity. Thus, he argued that the compromise between the House and Senate to get a reconciled bill should be the Feinstein/Nelson amendment -- i.e., to tranfser the cases to the FISA court, which would then rule on whether telecoms deserve immunity.

*

The Motion to Table (i.e, kill) the Senate Judiciary Committee's bill -- which does not contain immunity and which does contain important safeguards on eavesdropping powers -- just passed 60-36. That means that the pro-immunity, pro-warrantless-eavesdropping Senate Intelligence Committee serves as the base bill. As usual, just enough Democrats -- roughly 12 -- voted in favor in order to ensure that the Motion passed while enabling Democrats generally to pretend that they opposed it. All GOP Senators voted in favor.

The pro-immunity, pro-warrantless eavesdropping Democrats: Rockefeller, Pryor, Inouye, McCaskill, Landrieu, Salazar, Nelson (FL), Nelson (NE), Mikulski, Carper, Bayh, and Johnson. Neither Clinton nor Obama bothered to show up for any of this.

*

There was some significant, and apparently unexpected, obstructionism on the part of Republicans this afternoon, whereby they blocked votes on any of the pending amendments and then filed a Motion for Cloture (i.e., to force a vote on the Senate Intelligence Committee bill as is), the vote on which will occur on Monday at 4:30 p.m. Supposedly, the obstructionism angered Reid and other Democrats and now Reid will not only support Dodd's filibuster but urge his caucus to do so as well.

I'm still trying to understand exactly what occurred procedurally and what the implications are, but for now, both Marcy Wheeler and McJoan have good explanations. The essence is that 36 Democrats already voted against the SIC bill (and in favor of the Judiciary Committee bill). To sustain a filibuster, they need 41 Senators who refuse to vote for cloture -- meaning they would need to convert 3 Democrats who voted for the SIC bill, plus Obama and Clinton (who are scheduled to be in DC on Monday for the State of the Union address). This is where Obama and Clinton's leadership could really make a genuine difference.

article originally published at http://www.salon.com/opinion/greenwald/index.html.

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