Last week the US House of Representatives voted to retroactively legalize warrantless wiretaps and grant immunity to US telecommunications corporations that cooperated with the program.
This week, Christopher Dodd (D-Connecticut) and Russ Feingold (D-Wisconsin) are leading opposition to a companion bill working its way through the US Senate. Dodd successfully derailed a similar bill last December with a filibuster. On Tuesday he delivered an exceptionally well-reasoned speech from the Senate floor, promising another filibuster for this version of the legislation. Dodd cited allegations by the Electronic Frontier Foundation (EFF) in his address:
“Clear, first-hand whistleblower documentary evidence [states] ... that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been ... copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple ‘splitters’ into a secret room controlled exclusively by the NSA.”
Dodd goes on to cite Judge Vaughn Walker, the judge overseeing EFF’s lawsuit against AT&T, who wrote, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
The point is, according to Dodd, that the issue needs to be decided in a court of law, not the US Congress.
Feingold, for his part, intends to focus on procedural votes to slow down the process. And Feingold, speaking at a New America Foundation event, placed the blame for the strong support for the legislation squarely at the feet of senior Democrats: “Democrats enabled [this]. Some of the rank and file Democrats in the Senate who were elected on this reform platform unfortunately voted with Kit Bond who’s just giggling he’s so happy with what he got. We caved in.”
Senator Kit Bond (R-Missouri), the ranking member of the Senate Select Committee on Intelligence, is the Bush administration’s lead on obtaining retroactive legality for the president’s warrantless wiretapping program and retroactive immunity for the telecommunications conglomerates.
Feingold told the New America Foundation that the danger of the legislation wasn’t just enabling the telephone companies to break the law. “It may well prevent us from getting to the core issue, that I’ve challenged since December 2005, which is the president ran an illegal program I think that was essentially an impeachable offense.” For Feingold, the big story isn’t necessarily the immunity issue, “it’s that our personal conversations are now in a giant database somewhere over which we have no control.”
So just what happened since last December and now. Well, predictably, money happened. As it turns out, the Congress critters could be bought for a lot less than anyone imagined. A MAPLight.org analysis discovered that the three largest US telecommunications giants—AT&T, Verizon, and Sprint—gave an average of only US$8,359 to House Democrats that supported the legislation. Fully 88 percent of the Democrats who reversed their position since last December (a total of 94 House Democrats) received money from the telecom giants. House Majority Leader Steny Hoyer (D-Maryland) who seemingly came out of nowhere with hyper-support of the measure received US$29,000 over the past three years. Others receiving outsized contributions include James Clyburn (D-South Carolina)—US$29,500, Rahm Emanuel (D-Illinois)—US$28,000, and Nancy Pelosi (D-California)—US$24,500. At the bottom of the proverbial barrel was Minnesota’s own Collin Peterson who received a grand total of, wait for it now, nothing.
What remains the most perplexing is Barack Obama’s deeply flawed and profoundly unprincipled reversal. Glen Greenwald’s analysis of Obama’s support for the measure is the best I’ve found. Basically, it boils down to nothing mattering more than getting Obama elected president. The cynics among us will hopefully be forgiven for assuming that Obama maybe doesn’t want to limit executive branch power in the event he is elected. Politics as unusual indeed. This is especially disappointing and troubling because as Tim Lee points out, Obama has been deft at reframing the national security debate: being tough on national security no longer means defiling the Constitution. With Obama’s puzzling reversal, Lee notes, “it’s back to Republicans being tough on national security and Democrats defensively insisting that they, too, hate terrorists more than they love the Constitution.”
David Kris, the former Bush administration lawyer, has published a legal analysis of the proposed legislation and it’s impact in two parts: here and here.
Let’s get our concepts straight. This was not a compromise as the Democrats insist. The Republicans and the White House is getting everything they wanted. This was, plainly, a capitulation as Feingold noted.
The cloture vote passed Wednesday night. Obama, Clinton, and McCain were all absent. Only 15 senators—including former presidential candidates Biden and Dodd—voted against cloture. Some theater remains, but the cloture vote was, for all practical purposes, the real vote.
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