Retroactive Immunity: Not A Compromise

A deal has been reached in the House under which the telecommunications companies, which permitted the President to illegally spy on Americans, will have the cases against them dismissed once the Attorney General represents to a US District court that the Government requested their cooperation in obtaining wiretaps of American citizens in violation of congress’ own prior law on the subject. The deal has now passed the House and goes to the Senate next week where a vote will be held on removing this provision, but which no one seriously expects to succeed. I don’t have much more to say about the merits of the arguments in favor or against this retroactive immunity that I haven’t already said before. I do, however, have two observations to provide, for whatever they are worth.

First, losing political battles is nothing new to those of my political persuasion. It’s disappointing, but there is something valuable about graceful defeat in the battle of ideas. That’s how self-governance works.

Therefore, I would be a great deal less upset about the current state of affairs if I only thought that those in charge at least understood what is so objectionable about this bill, but it is apparent that they still just don’t get it. Here is a quote, from Senator Kit Bond, that represents the good faith arguments (unlike the disingenuous ones I have written about before) for telcom immunity:

“I’m not here to say that the government is always right, but when the government tells you to do something, I’m sure you would all agree that I think you all recognize that is something you need to do,”

What frustrates me is this: doing what the government tells you includes complying with laws passed by Congress. By allowing the President’s word to override the laws passed by Congress, particularly where federal courts have so far held that no reasonable person could have thought his directive was legal, is an endorsement of the most corrosive kind of corruption put forth by any president — and it is becoming more popular. It’s the same line that so famously alerted the country that Richard Nixon had lost it:

“When the president does it that means that it is not illegal.”

This is not the first time this President has endorsed this view – the arguments in favor of “enhanced interrogation” rested, in part, on an argument that with regard to issues of national security the President is not bound by the laws of Congress. And it is no coincidence that this dictatorial theory is being revived with regard to FISA. Conservatives never liked FISA, and the arguments against it have always been that the President should not be constrained by anything but the Constitution when it comes to protecting the country.

I won’t get into a discussion of the policy of the issue, except to point out (for a little perspective) that the Constitution would not prohibit the President from listening to every single phone call you make to your significant other, without the slightest suspicion that you are involved in any untword activity; or monitoring which websites you read, for how long, etc, because any expectation of privacy you have in those communications is, supposedly, unreasonable.

Which leads me to the second part of all this that disappoints me far more than merely losing the argument would; Congress has now gone out of its way to sanction this corrosive theory. Supposedly, this “compromise” was made in order to keep the language in FISA that it shall be the “exclusive means” by which domestic wiretapping will be conducted. Just as it was the “exclusive means” on the day when the President decided he didn’t care what the law said, and the day that 4 out of the 5 national telecommunications companies assented to that conclusion (the 5th one came around after all this immunity talk began). I still don’t see what Congress expects to get out of this, but whatever it is, it seems Congress has decided that it is worth its institutional legitimacy.

The only thing this bill compromises on is the rule of law.

Photo courtesy of Flickr user ekai.

Published in: on June 23, 2008 at 10:30 am Comments Off on Retroactive Immunity: Not A Compromise

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