Telecom amnesty update

[David Farber <dfarber () cs cmu edu>]

Begin forwarded message:

From: "Robert J. Berger" <rberger () ibd com>
Date: October 27, 2007 3:28:45 PM EDT
To: Dewayne Hendricks <dewayne () warpspeed com>, David Farber  
<dave () farber net>
Subject: Telecom amnesty update


[I am including the html version of this since it has a lot of  
important links. I think this is a case where writing your  
congresscritters can actually help. There are some links embeded  
below, but you can go to the EFF to find out how to contact them if  
you don't know
https://secure.eff.org/site/Advocacy?alertId=321&pg=makeACall - Rob]

SATURDAY OCTOBER 27, 2007 08:32 EST
Telecom amnesty update

http://www.salon.com/opinion/greenwald/2007/10/27/amnesty/index.html

Several developments over the past few days demonstrate real progress  
in the effort to stop telecom amnesty. This Newsweek article by  
Michael Isikoff and Mark Hosenball details the efforts triggered by  
bloggers, along with MoveOn, to stop the bill, led by Chris Dodd:

A White House campaign to win quick passage of a major surveillance  
bill has hit a new snag in recent days: four Democratic presidential  
candidates have signaled their intention to oppose the measure as it  
is currently written.

Sen. Chris Dodd of Connecticut took the lead last week when he vowed  
to filibuster a version of the bill overwhelmingly approved by the  
Senate Intelligence Committee. . . . In a statement blasting the  
program as "unconscionable," Dodd said he would "do everything in my  
power to stop Congress from shielding this president's agenda of  
secrecy, deception, and blatant unlawfulness."

No sooner had Dodd issued his statement than MoveOn.org -- along with  
leading liberal bloggers such as DailyKos -- launched their own  
campaign to pressure other Democratic presidential candidates to  
commit to the same position. In mass e-mails, MoveOn urged its  
supporters to call other Democratic senators running for president  
and encourage them to back a filibuster of the bill. Dodd's campaign  
reported $200,000 in new donations in the first 36 hours after he  
issued his filibuster threat.

By Wednesday, at least two other candidates -- Sens. Barack Obama and  
Joe Biden -- had joined with Dodd in pledging to oppose any  
surveillance bill that includes immunity for the telecoms. Sen.  
Hillary Clinton, the Democratic front runner, released a more  
equivocal statement, saying she was "troubled by the concerns" raised  
about the bill and pledging to "study it very hard." The statement  
continued: "As matters stand now, I could not support it and I would  
support a filibuster absent additional information coming forward  
that would convince me differently."

That all demonstrates emerging and increasingly effective anti- 
amnesty positions from everyone in the Democratic field -- except  
one. As Matt Stoller noted, even the New York Daily News, in the  
course of criticizing efforts to derail telecom amnesty, mocked  
Clinton for her nonsensical statement about whether she would  
filibuster.

Demonstrating the increasing significance of these efforts, Chris  
Dodd has now been invited to appear this Sunday on Meet the Press,  
where he will be the only guest for the entire hour. His stance in  
defending the Constitution generally, and his specific efforts to  
stop telecom amnesty and warrantless eavesdropping, will undoubtedly  
be a major topic (see Dodd's superb Senate floor speech this week on  
these issues here).

The letter-petition to Harry Reid and the Senate Judiciary Committee  
-- co-written and co-signed by several bloggers along with groups  
such as the ACLU, EFF, MoveOn, Color of Change, Center for National  
Security Studies and Working Assets -- is here, and I'd encourage you  
to sign it (here) as but the very first step in the campaign to stop  
telecom amnesty. Reid is going to be the key target -- and the key  
problem -- here, as is evident from the quote he gave to Newsweek:

But the maneuvering by the contenders -- and the role played by  
MoveOn -- also raised concerns among senior Democrats on Capitol Hill  
that presidential politics might impede efforts to reach a compromise  
on such a sensitive and important national-security measure. "We need  
to get things done on this bill," Senate Majority Leader Harry Reid  
told reporters Tuesday.

That's brilliant. George Bush continuously decrees: "Give me  
everything I want on this bill or I will veto it." In response, Harry  
Reid says: "I'm very upset by people trying to delay or stop this  
because the only thing that matters is that we get a deal." To Reid,  
apparently, it doesn't matter what the terms are of the deal they  
reach or how much they give in to the White House. All that matters  
is that he deliver something to the White House -- like a good boy --  
that makes George Bush sufficiently happy to sign. It is possible  
that Reid means something else -- i.e., that he only wants to ensure  
that the Senate pass something to send to Bush, regardless of whether  
it meets all of Bush's demands (including amnesty) -- but only time  
will tell.

As things stand, the FISA bill is currently in the Senate Judiciary  
Committee where Chairman Pat Leahy, at least thus far, is reportedly  
committed to stripping the amnesty provision out of the bill. Having  
this bill come to the floor without amnesty in it would force the  
Republicans to offer it as an amendment and would mean they would  
need 60 votes specifically in favor of amnesty in order to put it  
back in (because Dodd would filibuster any such amendment).

That is much harder to accomplish than having the bill reach the  
floor with amnesty already in it and then have to drum up 60 votes  
for the bill generally. Thus, the key right now is the Senate  
Judiciary Committee, and Dodd's website is the place to go to find  
out how to keep up the pressure there, completely with a current whip  
count of Committee members who are for or against amnesty.

Finally, there seems to be this notion even among members of Congress  
in their more enlightened moments that amnesty ought to be considered  
if the White House finally agrees to show them documents -- regarding  
the "legal justifications" for warrantless eavesdropping and the  
"rationale" for the telecoms' actions -- which they have been  
concealing thus far. But this claim makes no sense on multiple levels.

First, as Marty Lederman notes, the White House's willingness to  
disclose these documents in exchange for promises to vote for amnesty  
-- i.e., their use of these documents as political leverage --  
demonstrates that there is no valid rationale, and never has been,  
for refusing to turn them over to Congress. Why would Congressional  
Democrats agree to give up something so extraordinary (telecom  
immunity) in exchange for the White House's "agreeing" to do what it  
is required in any event to do -- namely, comply with Congressional  
oversight demands for these documents?

Secondly, as any litigator will tell you, when you allow one party in  
possession of all documents voluntarily to show you the ones they  
want -- while concealing others -- the only picture you get is a  
distorted, biased and one-sided picture. The only mechanism for  
actually getting the truth is to compel the White House to turn over  
all documents, not to have Senators make a pilgrimage to the White  
House to look at the ones the White House has specially selected for  
them.

Finally, and most importantly, if it is really true that these magic  
documents show how innocent and reasonable were the telecoms'  
actions, then they will win in court. FISA and other statutes already  
provide immunity for them if they acted in good faith. There is no  
reason for Congress to put itself in the position of judge in this  
matter -- there already is a real judge in a real court presiding  
over these cases.

If the secret documents which Dick Cheney is magnanimously agreeing  
to share are really as exculpatory as Cheney's good friend Jay  
Rockefeller claims, then the telecoms will win in court and all will  
be good in the Republic once again. The better the secret magic  
documents are for the telecoms, the less is the need for amnesty.

Granting amnesty to telecoms all because Dick Cheney showed Congress  
a handful of carefully selected documents which he is required to  
show them anyway is nothing more than an exercise in deceit --  
enabling Congressional Democrats to claim that they went along with  
amnesty only because they "forced" the administration into this  
meaningless "concession." If Congressional Democrats end up voting  
for amnesty, nobody should be the slightest bit fooled by what will  
be their claim that they did so only because they stood firm and  
"forced" the White House to show them these documents.

––––––––––––––––––––––––––––––
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-838-8896 eFax: +1-408-490-2868
http://www.ibd.com


––––––––––––––––––––––––––––––
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-838-8896 eFax: +1-408-490-2868
http://www.ibd.com



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