Substitution is Just Another Way to Confer Retroactive Immunity—Sheez!

Remember our mantra this week, pups? No retroactive immunity. No prospective immunity. No basket warrants.

Have you been practicing? Have you worked out the harmonies? Cause Arlen Specter has just introduced an amendment to the FISA bill. It’s called the "Foreign Intelligence Surveillance Substitution Act of 2007" and what a lot of hooey it is.

According to Specter’s Statement made to introduce the bill

The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S.

Which gives them all the benefits of retroactive immunity, without the blowback that the word "immunity" will provoke. Kinda like Irv Lew Libby’s commutation gave him all the freedom of a pardon, with none of the transactional immunity that would require his truthful testimony if he were to be subpoenaed to testify before a Congressional Committee. Such symmetry!

One of my favorite lines from Specter’s introductory statement, and it’s a howler is this:

I begin my analysis by acknowledging the good citizenship of the telephone companies for whatever it is that they have done. We still don’t know all of what that is. But I do not believe that it is appropriate to grant what is called "retroactive immunity” because of what has occurred here.

[emphasis mine].

If we don’t know what the telcoms did, how can we know if they have displayed good citizenship by doing the thing that we don’t know what they’ve done? (trying saying THAT sentence 3 times fast. Ha!)

Especially when you consider that:

As Chief Judge Vaughn Walker wrote when dismissing AT&T’s immunity claims, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.” Judge Walker also flatly rejected the government’s secrecy argument: “The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”

Whatever it was that these telcoms did, it was SOOOOO bad that the top tier of DOJ was willing to resign over it, a federal judge thinks that no one can seriously contend that they had a good faith belief that it was legal, SO WHY IS CONGRESS SO HELL BENT ON HELPING THAT ADMINISTRAION COVER UP ITS CRIMINAL ACTS.

Cause you know and I know, the only way anybody is gonna spill the beans about that criminality is to save their own damn skins.

Update: see the Electronic Frontier Foundation’s class action lawsuit on behalf of AT&T customers against AT&T regarding privacy.

graphic from vitualis flickr creative commons

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