Who needs a Fourth Amendment, anyway?

by Turkana

Want to understand the problem with telecom immunity? Channeling dday, Dan Froomkin puts it in a nutshell:

Bush on Thursday argued that the telecommunications companies shouldn't be punished for patriotically carrying out legal orders. And he characterized the lawsuits as being the product of "class-action plaintiffs attorneys, [who] you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train."

The Washington Post put Bush's claim in context on Friday: "Two nonprofit groups are overseeing [the five coordinated, class-action lawsuits pending against the phone companies]: the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union of Illinois." The Post also noted that "substantial damages would be awarded only if courts rule that they participated in illegal surveillance affecting millions of people, not just communications involving terrorism suspects overseas."

Even if the orders were illegal and the telecoms broke the law, however, is this really their battle? At Tuesday's briefing, an anonymous senior Justice Department official argued that they shouldn't be caught in the middle of a separation-of-powers argument: "[T]he issue, though, is whether in this heated disagreement between the President and some members of Congress about the scope of people's powers under the Constitution -- the scope of the President's national security powers, the ability of Congress to pass certain statutes -- whether private parties are going to be the way to play that out, and essentially, while our intelligence capabilities continue to degrade, is that how we're going to settle those issues, many of which have gone on for over 200 years?"

Indeed: Why hasn't this issue been explored elsewhere -- say in congressional hearings, or criminal cases? The short answer: A lot of the same Democrats who would have called these hearings timorously acquiesced to the program when they were informed about it in secret briefings years ago. So they've been co-opted. And Bush's own Department of Justice isn't going to sue itself.

As a result, the telecom lawsuits are the only remaining avenue the public has -- at least until the next administration to find out what was done in their name. And immunity would be the final touch to the administration's stone wall.

That's it. As dday says:

It's beyond clear that the entire brouhaha over FISA comes down to this: Bush wants to keep his lawbreaking secret, and shutting down the ability for courts to get to the bottom of it, sanctioned by the Congress, would do so. They don't want to save the telecoms from financial ruin, they want to stop discovery. In fact, it's very likely that the telecoms have already been indemnified. That's why their main trade group opposes blanket amnesty.

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

This is about government cleaning up its own mess and sweeping it away. And the Democrats are eager to aid in that process, eliminating the possibility that Americans find out how much of their communications were gathered for surveillance, who requested the information, and who authorized the program.

This is about protecting Bush from accountability. For spying on the American people. For no reason, and in violation of a little thing called the Fourth Amendment. And it appears that the Democratic Congress will let him get away with it.