FICA Immunity – enough!

One Senator Says ‘Enough’
By Dan Froomkin
Special to
Wednesday, June 25, 2008


“does the president serve the law or does the law serve the president…”

 A senior Democratic statesman took to the Senate floor yesterday and delivered a jeremiad against President Bush and his lawlessness the likes of which I’m not sure we’ve ever heard there before.

What set off Sen. Chris Dodd (D-Conn.) was the warrantless surveillance bill sent over from the House this week and seemingly assured of passage in the Senate. The bill significantly broadens Bush’s spying powers and essentially guarantees civil-lawsuit immunity for the telecommunications companies that cooperated in earlier surveillance efforts.

But to Dodd, it’s just the latest indignity from a president who has come to expect a corrupted political system to jettison the rule of law on his say-so.

“Retroactive immunity is on the table today; but also at issue is the entire ideology that justifies it, the same ideology that defends torture and executive lawlessness,” Dodd said.

Here is the text and video of his speech.

“If we pass this legislation, the Senate will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president’s hands and will place the telecommunications companies above the law,” he said.

“[B]y short-circuiting the judicial process we are sending a dangerous signal to future generations. They see us establishing a precedent that Congress can — and will — provide immunity to potential law breakers, if they are ‘important’ enough. . . .

“I am here today because with offense after another after another, I believe it is long past time to say: ‘enough.’

“I am here today because of a pattern — a pattern of abuse against civil liberties and the rule of law. Against the Constitution — of which we are custodians, temporary though that status may be. . . .

“I am here today because warrantless wiretapping is merely the latest link in a long chain of abuses. . . .

“What is at stake is nothing less than equal justice — justice that makes no exceptions. What is at stake is an open debate on security and liberty. . . .

“This bill does not say, ‘Trust the American people; Trust the courts and judges and juries to come to just decisions.’ Retroactive immunity sends a message that is crystal clear. . . .

“And that message comes straight from the mouth of this President. ‘Trust me.’ . . .

“What is the basis for that trust?”

Ticking off examples of “an abandonment of the rule of law” — including the politicization of the Justice Department and the rolling back of habeas corpus rights — Dodd eventually came to the ultimate case study.

“I don’t think you can hold the rule of law in any greater contempt than sanctioning torture,” Dodd said. . . .

“Controlled death. Outsourced torture. Secret prisons. Month-long sleep deprivations. The president’s personal power to hold whomever he likes for as long as he’d like. It is as if we woke up in the middle of some Kafka-esque nightmare.

“Have I gone wildly off-topic . . . ? Have I brought up a dozen unrelated issues?

“I wish I had. . . I wish that none of these stories were true.

“But, we are deceiving ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, or the secrecy issue as if each were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small; and as long as we keep this small, the rule of men is winning.

“There is only one issue here. Only one: the law issue.

“Does the president serve the law, or does the law serve the president? Each insult to our Constitution comes from the same source; each springs from the same mindset; and if we attack this contempt for the law at any point, we will wound it at all points.

“That is why I’m here today. . . . Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as their verdict goes their way. That some only believe in the rule of law, so long as exceptions are made at their desire. It puts secrecy above sunshine and fiat above law.”

Salon blogger Glenn Greenwald writes: “[I]f I had one wish this week, it would be that any journalist who will ever write or utter the words ‘FISA,’ ‘telecom immunity’ or ‘Terrorism’ would be forced to watch this speech from start to finish without distraction.”

Here is more blogger reaction.

Madison Powers warns about the surveillance bill in an opinion column for Congressional Quarterly: “The near-universal refrain is that protection against terrorism depends on its passage. The obvious truth, however, is that while the bill has been bottled up for an extended presidential primary season, the sense of urgency now is based more on the political needs of individual members of Congress than on national security needs.

“Democrats want to remove the issue from the fall campaign, and Republicans rarely miss an opportunity to hyperventilate over scary things, for which fewer civil liberties seems to be the prescription. Democrats, including ones who should know better, capitulated in fear of being blamed for not doing enough to stop a terrorist attack because of an overly developed concern for civil libertarian niceties.”

But Powers writes that “the political calculus that it won’t matter that much in the end underestimates the extent of its flaws. . . .

“What matters most fundamentally is the protection of individual American citizens who might be spied upon illegally and then left without legal remedy. . . .

“Nothing in the legislation mitigates the threat of promiscuous spying on the public. Nor does it supply a legal remedy for those inappropriately spied upon.”

The USA Today editorial board writes that the new bill is flawed: “In many ways, the compromise is no better than the temporary, overly broad law it would replace. The question has never been whether terrorists are a threat to this nation (they are) or whether U.S. intelligence officials should be able to spy aggressively on them (they should). It’s how to achieve those ends without trading away the privacy of Americans.

“The Bush administration has repeatedly demanded far more authority than it reasonably needs and insinuated that anyone who opposes its view is soft on terrorism. That’s a dismayingly effective argument in an election year when candidates are trying to inoculate themselves against blame for another terror attack. . . .

“[C]ompanies are being given immunity for actions they knew or should have known were illegal, and which have never been fully disclosed. When a president seeks to act illegally, businesses should have a potent incentive to comply with the law and demand a court order. This legislation would do the opposite, weakening the best protection the public has against the monitoring of its communications.”

Republican Senator Kit Bond, meanwhile, defends the bill in a USA Today op-ed. Among his arguments: “The agreement also gives vital civil liability protection to companies that answered the call of duty after the 9/11 terrorist attacks. Without such protection, it is likely our private partners will refuse to cooperate with future requests for assistance. This is a risk our nation cannot accept.”

But as I wrote in my March 3 column, Why Immunity Matters, that is the most specious of all the arguments for immunity. Are the telecoms threatening to not follow lawful orders in the future? That sounds like extortion. Are they saying that without immunity, they’ll insist on greater assurance that what they’re asked to do is legal? That sounds fine to me. Or are they balking about doing things that we don’t even know about?

Leave a Comment

Your email address will not be published. Required fields are marked *