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Some of you have noticed it, but I bet my pretty ass that too few have realized just what is REALLY being debated beneath the rhetoric and posture of the conflicting parties.
I am talking about the stand-off between, basically, the House of Representatives and the Administration. I skip for now party labels, what party tends to align with what side of the issue, as it only obscures the issue.
People would do best to follow the idea of the US political system, and take sides not based on party but on the actual issue. We need to fight such stupid simplification if we ever want our individual preferences and interests to be represented in the shaping of our society.
The stand-off has boiled down to this: a law is to be passed that allows for less restricted wiretapping powers of the Administration. For several years the administration bypassed regular order of getting approval from congress, and seeking approval from the, for the purpose designated and created, Foreign Surveillance Intelligence Court (FISA court), for a secret surveillance program.
Exactly what the program of surveillance involved is not known to this day, but what is known is that the Administration did not go through the processes and steps laid out in statue and law.
Although such a violation of statue constitute a crime, punishable by prison, the Administration claims that the President was entitled to do what it did – the reasons for why it could do this has varied, often because one reason was challenged to the point that the Administration abandoned it for another.
That matter less that the fact that unless taken to court, a crime might have been committed. Ultimately only a court can settle that for sure.
However, while both the Senate and the House has offered the Administration legislation that would make it able to do what it did before – at least that of what it did that it has chosen to disclose – there is one thing that the Administration just can not agree with and therefore the President has refused to sign any bill.
The thing missing is retroactive immunity for the private companies it enlisted to conduct the surveillance.
A company providing communication – i.g phone companies and Internet Service Providers – must also follow the rules laid out by the statue regarding wiretapping, and request and be shown a court order from the FISA court.
Obviously, since the there had been no such application for such a court order for parts of the wiretapping that would require such, many companies has complied with the request from the Administration without any court order.
That means that they went against the law, at least until a court decides otherwise.
Several lawsuits have been filed against companies for this reason, which would give ample opportunities to find them either guilty of violating a law or – as the Administration claims – acquitted because they trusted in the legal advice, and the assurances and authority of the President asking for their assistance.
Both outcomes are possible.
But the Administration do not want any such test of the guilt or innocence of the companies. It wants the surveillance bill to be passed to include a prevention of all lawsuits against these companies.
Not only has the Administration refused to have the legality of its’ own conduct in the surveillance case tested in court, but it also wants to spare the companies that assisted it potential damages to their assets, profits and reputation.
What makes it worse is that it is not even known exactly what the companies helped the Administration do, only that a law was seemingly violated.
That makes it very hard to consider it relevant when the Administration offers its word that no crimes where committed, since it does not reveal what it was that was committed that supposedly wasn’t a crime.
So far it is a pretty clear cut case to me – if someone is suspected of having committed a crime, that should be tested in court. Immigrating and exculpatory circumstances would also have a chance to be brought before the court and tested for validity.
But instead of remaining focused on this basic matter or whether or not laws have been broken, the Administration and those supporting it in this matter has decided to obscure the issue.
Using the extensive access to media, the President has spoken of the issue as a matter of whether or not those resisting this retroactive immunity are dedicated to the security of Americans since they hold up this “vital” and “crucial” and “immediately needed” piece of legislation because of such a “petty matter”.
The President and the supporters of His stand in this case, has even gone so far as to accuse those who have lawsuits against the companies, of doing so for the monetary gain. Those representing the plaintiffs withholds that the main reason they want to challenge the companies in court is to sure justice is done, further violations of laws are prevented, and clarification of just what the law says in the case of the President’s authority is achieved.
If someone committed a crime against you, wouldn’t you want to have that settled?
If the other side of the lawsuit claimed they were innocent because of circumstances, wouldn’t that be par of the course and- rather than preventing it – making a court procedure even more important to sort out the matter?
The bill offered the Administration, which it will not accept without the immunity, would give the Administration the right to require assistance in surveillance from private companies and companies complying would not risk any lawsuits for doing so.
So companies assisting in the future would have immunity.
Why then does it matter so much whether or not companies that assisted without the court order the law made mandatory for them to be shown?
The only reasons I can see is that the Administration do not want any more details about just what the surveillance program included, and do not want a court to find a company guilty since that would undermine the Administration’s claim that the President’s authority allowed Him to unilaterally decide to skip over the involvement and approval of the FISA court demanded by statue.
Also, by pardoning without even having been tested for guilt a private communication provider solely upon a request from the President, providing access to communication, information and data it makes it dangerously likely that the President can get anything it wants just by asking and the companies would have no incentives not to comply, except for ethical reasons.
You might think this political posturing means nothing to you. Well, think again.
Do you want a man, who has already proven that he prefers secrecy and while claiming his acts were legal refuses and resists having it tested in court, to be able to seek assistance from companies that has access to IT, phone lines, mails etc. and neither he nor the companies he enlists need ever fear that they will be tried in, or even brought to, a court?
In a recent Congressional hearing, Attorney General Michael Muksey motivated the retroactive immunity with an interesting argument:
Mukasey said some 40 pending lawsuits against companies that handed over reams of data on Americans to US intelligence agencies, in apparent contravention of the law, would harm national security if they were allowed to proceed.
"It would continue to put the conduct of companies front and center," Mukasey said.
The panel's ranking Republican, Pennsylvania Sen. Arlen Specter, responded that lawsuits should be allowed to proceed.
"Why shouldn't that conduct be front and center? Why shouldn't it be subject to the challenge of an unlawful invasion of privacy? Why should the courts be foreclosed from making that decision?" Specter asked.
Specter noted that Congress's oversight authority has been virtually castrated by Bush administration efforts to keep the details of its warrantless wiretapping program hidden.
Basically it seems the Bush administration has a phobia for court scrutiny. That might be because the Congress has basically neutered, much due to it’s own spinelessness and internal divisions, in its oversight and regulation of the executive branch.
Only remaining authority with which the Administration would have to comply, are the courts and to get a matter before the court depends on how hard the Congress wants to press for it
The Administration will do anything, and use any dirty trick in the book, to make sure it does not happen.
If you really want to know what this is all about and why you can not afford to be passive, and why you can not be neutral (silence is compliance), you should read this article. This is NOT a matter of abstract politics far “above and beyond” your life – but there are people who would love you to think that it is.
Politics is about deciding who to entrust with extreme powers over the lives of the people of a whole society, and the emphasis is on the word "trust". But that trust can not be blind, and we need to act promptly against any actions by our elected that we find wrong lest we give it our blessing.
Someone afraid of scrutiny, has something to hide...wasn't that one of the arguments we were given for accepting the Patriot Act?
Bush uses briefing as 'megaphone' to push Congress on telecom immunity
