Only One Constituency

by dday

We really have to look at this FISA battle in a completely new way in the context of today’s New York Times story (emphasis mine).

The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.

At the Pentagon and the military’s Central Command, senior officials gave no indication of any heightened concern about the lapsing of the law. In Congress, staff members with access to updated briefings said they had not been given any specific information about lost intelligence that might endanger national security. And in the telecommunications industry, executives said it was largely business as usual.

Indeed, for all the heated rhetoric in Washington about the government’s wiretapping powers, the debate over what a new surveillance law should look like has little to do with the present or the future and almost everything to do with the past.

We all knew that the intelligence leadership was fudging the truth about how they needed unlimited surveillance powers or else we’d all be strangled by Al Qaeda and the Symbionese Liberation Army while walking through Central Park. The FISA law, which has been revised over 50 times since its inception in 1978, is prefectly capable to handle any intelligence gathering of overseas threats while at least building in some basic judicial review to ensure compliance and civil liberties protections under the Fourth Amendment. What’s been assumed is that the phone companies were demanding amnesty for going along with Bush Administration requests to circumvent FISA before and after 9/11. In the wake of this article, along with the news that Republicans are all grumbly that the telecoms aren’t showering them with cash for helping their cause, you can only conclude that the phone companies really don’t care whether they’re getting amnesty or not. And they really shouldn’t. The executive branch has proven pretty adept at shielding them from prosecution by invoking the state secrets privilege, and the courts have been extremely deferential in waiving cases due to lack of standing. Even if cases passed through the initial stages, it’s simply unlikely that the phone companies would ever be successfully sued, and even more remote that they would have to offer financial restitution. They’re simply not concerned about it.

So if the intelligence community doesn’t care about this, and the phone company executives don’t care about this, there’s only one constituency for which this legislation is designed. And that’s the Bush Administration itself. As Glenn Greenwald noted the other day, it’s not like this is even well hidden.

In his Press Conference yesterday, Commander-in-Chief George W. Bush candidly explained why he was so eager to have Congress grant amnesty to telecoms:

“Allowing the lawsuits to proceed could aid our enemies, because the litigation process could lead to the disclosure of information about how we conduct surveillance.” […]

Bush is finally being candid about the real reason the administration is so desperate to have these surveillance lawsuits dismissed. It’s because those lawsuits are the absolute last hope for ever learning what the administration did when they spied on Americans for years in violation of the law. Dismissal via amnesty would ensure that their spying behavior stays permanently concealed, buried forever, and as importantly, that no court ever rules on the legality of what they did. Isn’t it striking how that implication of telecom amnesty is never discussed, and how little interest it generates among journalists — whose role, theoretically, is to uncover secret government actions?

That’s all this is about. The telecoms don’t want the amnesty. The overriding goal is to shut down these lawsuits and, most important, eliminate the discovery phase so that the full extent of Administration lawbreaking is permanently hidden. This is about burying the evidence, as every single action by the White House since the Democratic takeover of Congress has been. Bush may have a soft spot in his heart for his corporate buddies, but he’s really not interested in indemnifying them. He’s interested in immunity for himself.

As the Democratic leadership in the Congress floats trial balloons about capitulating on this bill, it’s important to keep this end goal in mind. Official Washington really doesn’t want to reveal a lot of its secrets. Immunity has a certain pull for the Democrats as well, particularly those who were briefed about the program, even in part. They either made no objection or failed to ask the proper questions or in some way became complicit to this lawbreaking that has occurred for almost SEVEN YEARS now, and if the truth ever came out, my guess is that nobody would come out looking so noble.

I’m sure this is what’s being discussed in back channels all over Washington. There aren’t any lobbyists pushing for this, no citizens groups, no grassroots organizations. This is about the Village, mostly from inside the White House but really the entire structure of elites, trying to put up walls around itself. There is a powerful institutional urge to conceal.

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