Steny's Bold "Ignore the Rubes" Strategy

by publius

To follow up on Hilzoy’s post, the part of the FISA “compromise” I find most infuriating is that the Democrats are quite literally insulting our intelligence in describing what they did. Their press releases and statements on telecom immunity assume that we’re morons. If you want to grant immunity, then do it and have the guts to say you’re doing it. But don’t lie about what you did. This whole “treat them like rubes” strategy is unacceptable.

To illustrate — the telcos are getting immunity and everyone knows it. They literally only have to show that the Bush administration sent them a letter. That’s it. Show the letter, and you’re immune — no discovery, no nuthin'. (As I've said, I don’t care that much about punishing telcos, I care about generating information through discovery).

However, instead of just admitting that they caved, the Dem leaders are pretending like they’ve instituted tough new standards by requiring a district court to make the final decision. Thus, they’re essentially doing two things: (1) lying about what they’re doing, and (2) shifting blame to a politically unaccountable branch of government.

When I say “lying,” what I mean is that Democratic leaders are dressing up the district court “review” as something it’s not. Via Laura Rozen, here’s how Rockefeller’s committee described the rubber stamping:

A district court hearing a case against a provider will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by substantial evidence. In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.

Sounds pretty scary, eh? Lots of big mean words in there. “Supported by substantial evidence” — tough! Exacting! And you gotta love the whole “opportunity to file public briefs on legal issues.” Yes, I’m sure we can all have a lively legal debate about whether the letter that everyones knows was sent was in fact sent. Should be a very detailed brief.

And Pelosi’s comments were arguably worse (and I love Pelosi):

And it is [] an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity.

Ah yes…. “Look into issues that relate to immunity” — that’s a pretty accurate description. Thanks for assuming we’re idiots.

Again, the deal itself is bad enough on its own. But what’s borderline intolerable is the intellectually insulting, misleading language they're using. I can think of two potential explanations for the dishonesty. The first is that they’re hoping we’re idiots and won’t really understand the difference. The second is more troubling — it’s that they know we know, but they don’t care. They’re just coming up with something — anything — to convince low-information voters that they applied strict standards by “empowering” a district court. The bloggers, they argue, will forget about all this in a few days, so they can just ignore them. Ugh.

One final question — why now? If there was ever a favorable time for blocking immunity, it’s now. I could maybe understand this decision in 2002, but not in 2008 when the GOP is having so many political and financial problems. And besides, it’s bad politics.

Others have more — see Glenn, Harold Feld, and Josh Patashnik.

Comments

[Adam]

I posted a fairly long comment on this in the other thread, so I'm just going to link to it here. :) What I forgot to mention there -- and what's relevant to this post -- is that the immunity provision seems specifically designed to nullify any duty of inquiry by the telcos, and thus the business judgment rule. It's crafted to prevent not just liability, but discovery, which is doubly wrong.

[joel hanes]

Why now?

I used to think that the Dem leadership supported retroactive telecom immunity from a combination of Village Broderist bipartisan corporatism, defense of campaign contributors, and a desire to just put the crimes of the Bush 43 years firmly into the past so that the Democratic Party can assume control with a relentlessly upbeat and positive message.

That's what I used to think.

Now I think that Pelosi and Hoyer must either be complicit, somehow legally vulnerable themselves, or that they're being blackmailed by BushCo. Because this "compromise" has been carefully and deliberately engineered to kill the ongoing lawsuits expeditiously while giving a tiny bit of political cover, and its passage through the House is being masterfully greased by the leadership.

If this sucker passes, I will contribute to and volunteer for any one who will stand against Pelosi in 2010 in a primary challenge. I hear there's someone named Sheehan, someone perhaps more brave than cunning ...

[Adam]

Now I think that Pelosi and Hoyer must either be complicit, somehow legally vulnerable themselves, or that they're being blackmailed by BushCo.

Pelosi and Rockefeller were/are members of the Gang of Eight, so that may be what they're worried about. But I have no idea what Hoyer's up to.

[publius]

I mean, there is at least a plausible argument for telco immunity.

They could have just come out and said, "you know, this is necessary." I would disagree but I wouldn't feel intellectually insulted. It's almost like the dishonest language is itself evidence that they know they're doing something they shouldn't be.

[publius]

I mean, there is at least a plausible argument for telco immunity.

They could have just come out and said, "you know, this is necessary." I would disagree but I wouldn't feel intellectually insulted. It's almost like the dishonest language is itself evidence that they know they're doing something they shouldn't be.

[MH]

If this bill passes, doesn't it get automatically kicked back to the House? If so, can someone there (Kucinich?...hell, Ron Paul?) re-alter it there, and keep bouncing it back and forth like that until January?

[Adam]

I mean, there is at least a plausible argument for telco immunity.

I think there's a plausible argument for telco indemnity -- that would allow the lawsuits to go forward without the financial impact. But this is immunity, which is quite distinct.

The fact that the bill seems to be targeted at discovery -- and that it would probably short-circuit all the lawsuits pending right now -- suggests to me that there's something else at work here.

If the telcos can get immunity, they could get indemnity, so either (a) They're planning to negotiate it down or (b) There's a specific reason they want to avoid discovery.

[hilzoy]

Like I said in my other post: the Republicans, and 20 shameful Democrats, voted down the Specter-Whitehouse Amendment, which would have spared the telcos.

[Adam]

If this bill passes, doesn't it get automatically kicked back to the House?

No, it goes Committee -> House -> Senate -> Conference Committee to resolve the two -> President.

[joel hanes]

closing tag.

[publius]

as i recall, kevin drum speculated a while back that they probably already have an indemnity agreement -- i.e., it was their price of admission.

so literally the whole thing is about discovery

(the kevin drum link is in my old fisa post linked above) and i agree that the specter bill would have been a good compromise

[publius]

closing italics

[publius]

hmmm - try again

[Adam]

my italics tags laugh at your feeble efforts

[publius]

how do you that - i thought you just typed /em but apparently i'm wrong

[Adam]

i have no idea, but i definitely felt a rush of power there. :)

i just put three closing tags before my comment so there were probably multiple open tags or something.

[publius]

clearly i'm not yet entitled to wear the "I Am Aware of All Internet Traditions" T-shirt

[Adam]

Oh, it was those little arrows I made.

[MH]

Then is there any way for a House person to say, "Hey, you modified our bill too much, you have to send it back through the House"? I mean the Senate doesn't just get second pass at it, the House and Senate bills have to at least agree/be close to agreeing, right?

[Adam]

The Committee basically just trues up the bills, so if the provision is in both they couldn't take it out.

It also seems unlikely that there'd be enough resistance on the Committee to even do that.

[Adam]

As to the conference committee:

The Speaker of the House and presiding officer of the Senate appoint conferees for their respective chambers. Selection of conferees is usually made with advisement of the committee of jurisdiction, and the chairperson and ranking member guiding selection of conferees, who are usually members of their committee.

[Adam]

OK, now I'm about ready to break furniture.

From the WaPo:

The breakthrough on the legislation came hours after the White House agreed to Democratic demands for domestic spending additions to an emergency war funding bill. ...

The war spending bill, for example, includes $162 billion for the conflicts in Iraq and Afghanistan and an additional $95 billion worth of domestic spending on programs such as unemployment insurance and higher-education benefits for veterans. Bush, who had threatened for months to veto the legislation, said he will sign it.

Leading Democrats acknowledged that the surveillance legislation is not their preferred approach, but they said their refusal in February to pass a version supported by the Bush administration paved the way for victories on other legislation, such as the war funding bill.

"When they saw that we were unified in sending that bill rather than falling for their scare tactics, I think it sent them a message," said House Speaker Nancy Pelosi (D-Calif.). "So our leverage was increased because of our Democratic unity in both cases."

Yes, our leverage was increased by uniting in totally craven cowardice.

#$@#%@#$%????

[Nell]

publius: It's almost like the dishonest language is itself evidence that they know they're doing something they shouldn't be.

Almost??

[Adam]

Another interesting things in that article:

The immunity would cover companies that helped the government between Sept. 11, 2001, and Jan. 17, 2007, when the warrantless surveillance program was brought under the authority of the secret Foreign Intelligence Surveillance Court. That program had allowed the National Security Agency to monitor communications to and from the United States without court oversight.

The retroactive legal protection would apply only in lawsuits filed against telecommunications firms. Any lawsuits against the government would proceed and would have to be defended by other means.

That seems to indicate two things:

1. The bill probably isn't about government officials protecting themselves.

2. Avoiding discovery seems an increasingly likely explanation. This isn't about money, it's about stopping those lawsuits.

[Davis X. Machina]

Any lawsuits against the government would proceed and would have to be defended by other means.

A false hope.

The gov't just invokes the state security privilege -- the 'other means' menitoned -- and the case ends there.

Already happened, several times.

This is why civil discovery directed at the telcos represents the only way forward.

[Johnson's Dog]

I'm not a lawyer. But isn't this law ex post facto and thus unconstitutional?

[Jay C]

@Johnson's Dog:

I also thought that telcom immunity fell under the "no ex post facto" provision of the Constitution, but have since informed that said clause only applies to criminal, not civil law. Shame, that...

[hilzoy]

Adam: can anyone else, in any government law suit, show standing?

[lostoption]

Actual conversation overheard in House cloakroom a while back:

John Boehner (R-Tanland) (possibly most odious republican sack-of- shit on the planet):

Steny, you’re gonna cave –
eventually.

Steny Hoyer (D?-MD):

(Gives stern look, holds for a few seconds, then grin spreads across face)

Of course, we’re gonna cave, you
dumbass. But first we gotta work on some
cover. But, we’ll be in the bag by --
the Fourth of July.

Boehner:

(Overcome by emotion, tears welling up, embraces Steny)

Thank you, Steny.

(The two unlock their embrace, Boehner motions for Steny to proceed him out of room, Steny moves to exit)

Boehner: Hey, Steny, that telecom money
spending real good?

Steny: Go work on your tan, Johnnyboy.

Steny didn’t do a real good job on the cover, but he sure did cave.

Steny Hoyer (D?-MD) – Corrupt, Coward, Criminals’ Aider and Abettor

[Adam]

Adam: can anyone else, in any government law suit, show standing?

I'm not sure I understand the question -- I'm sure plenty of parties (including the telcos) might have standing against the government in this case, but the telecoms are off the hook no matter what. The problem with the bill is not that no one has standing to sue the telcos, it's that the telcos have a complete defense to every suit that doesn't require any proof.

[hilzoy]

Adam: sorry, I was thinking: if we're going to find out what's going on, we need some lawsuit involving this to get to the discovery stage. To do that, someone needs standing to sue. The 6th circuit (iirc) has ruled that to sue the government, someone needs to be able to show that her communications were actually intercepted -- not just that she suffered harm because she reasonably thought they might be, etc. And that will be pretty hard to do.

So my question was: will some lawsuit that might possibly reveal stuff about this program have a chance of getting off the ground?

[Adam]

My feeling is this tanks the chance of any discovery; everything I've read suggests that if the bill passes then the 40-some pending lawsuits will get dismissed. Discovery against the telcos is a lot easier, e.g., because a shareholder can get information reasonably relevant to their financial interests regardless of any secondary purpose; not so for the government.

[Sebastian]

"Thus, they’re essentially doing two things: (1) lying about what they’re doing, and (2) shifting blame to a politically unaccountable branch of government."

This is actually a pretty common move with the legislature and the court, and I've never been happy about it. I'm pretty open to the FISA immunity in theory, but I think passing it this way is exactly what I don't want out of government operations. There is a whole theory of the law that seems to be ok with a lazy legislature punting everything to the courts. Here the legislature is executing a double move--punting the public responsibility to the court and then defining it away. That is especially awful from my perspective because it strengthens the bad idea of punting to the courts while simultaneously being sneaky about the outcome so as to avoid Congressional responsibility.

[Sebastian]

"Any lawsuits against the government would proceed and would have to be defended by other means."

Again, I'm pretty open to teleco immunity in theory, but this isn't a particularly good argument. Between sovereign immunity and a million other ways the government doesn't subject itself to normal tort procedure, this isn't likely.

Now if we want to discuss severely limiting the concept of sovereign immunity, and start subjecting the government to normal tort liability--we are in a whole 'nother ballgame. I'm all for high level government actors having the same level of liability exposure as high level corporate actors (whatever we decide that level should be).

[Adam]

The bill passed 239-129.

[jungle]

Why cave now, when the Republicans are weak, you ask?

Because this isn't about the Republicans. This is really about corporate America, and they are not remotely weak. They largely control the election funding and dictate the tone of media coverage.

That's ignoring the fact that many Democrats in Congress probably don't share the grassroots horror at this proposal anyway. Like most politicians in most countries, they probably find it baffling how anyone could imagine that honourable politicians such as themselves could ever abuse any power - why should such paranoid safeguards be needed to protect the population from the affable guys they work with every day?

[JoshA]

Adam, slight typo: it was 293-129.

[Doctor Science]

Alert the media -- I agree with Sebastian!

it strengthens the bad idea of punting to the courts while simultaneously being sneaky about the outcome so as to avoid Congressional responsibility.

The fact that the only way people could find to figure out what's been going on is discovery in civil suits is indeed a *profound* Congressional failure. Oversight of the Executive is supposed to be their business.

I honestly don't understand the spinelessness of a many Congressional Dems -- trying to get them to stand up for *any* principles feels like trying to fence with cooked spagetti. Thank goodness my own Rep, Rush Holt, is *not* one of the pasta people, but Pelosi is driving me *insane*.