ProgressOhio

The House FISA bill is dead in the water.

The Senate FISA bill will have retroactive immunity for the people who sold you out:

Senators this week began reviewing classified documents related to the participation of the telephone carriers in the security agency program and came away from that early review convinced that the companies had "acted in good faith" in cooperating with what they believed was a legal and presidentially authorized program and that they should not be punished through civil litigation for their roles, the official said.

Only here's the thing: on what planet did the telecom companies here act in "good faith?" There's every indication that those who agreed to go along with the spying scheme were rewarded with free passes on regulatory issues like mergers and acquisitions, while the one company that actually asked questions and insisted on listening to their lawyers got shut out of the booming mergers market, and found their CEO sentenced to six years in prison.

And check this:

It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants.

Immunity for companies that can demonstrate they acted "pursuant to a legal directive."

What kind of "legal directive" are we talking about? Well, consider that this immunity is intended to be retroactive, to cover the activities these companies have already engaged in. There haven't been any court orders issued that authorize such activity. If there had been, the companies wouldn't need this bill. So we must be talking about some other kind of "legal directive." The kind that gets written in the executive branch. The kind that the executive branch keeps secret. The kind the executive branch tells Congress they're not entitle to see.

These "legal directives" are really just "legal opinions" drafted by the "administration." They're untested in any court, because they won't allow any court to see them, and any case that tries to test them gets blocked, usually when the "government" invokes the "state secrets" doctrine, or some other claim that national security or executive privilege would somehow be compromised.

So what we're saying here is that secret memos can now be drafted (retroactively and be backdated if necessary?) that purport to be "legal directives" upon which the telecom companies can claim to have relied in "good faith." Or worse, they may even be able to say they received nothing but oral assurances that their activities were "legal." And if you want to see these "legal directives," it just so happens that since they've been prepared by the Office of Legal Counsel or some other close advisors to the president, executive privilege may just prevent you from doing so.

Or "national security."

Or "I just don't feel like it, and you can't make me."

And that's the real problem here. How is anyone to tell the difference between law that meets the commonly accepted definition we all work with every day on the one hand, and "whatever the hell the president says" on the other?

What is "law," anyway? Is it the stuff that Congress passes in public and that you can read in order to be able to obey it? Or is it just anything that can in practice frighten you into obeying? If you can be sent to jail, or immunized from suit, or whatever, based on a secret showing that you relied in "good faith" on a memo an "administration" official gives you (and literally nothing more -- and perhaps even a lot less), you really have to ask yourself that question. What. Is. Law?

And if nobody knows what "law" is, one might just as well ask what the point of being in Congress is. After all, it's purported in our Constitution that Congress has the prerogative to make the laws. But now it's making laws that say things other than what it passes can substitute for law -- specifically anything the White House puts on in a memo, or whispers to you in a meeting.

That's a gut punch directly to the very foundation of western civilization. And we worry whether talking about it will jeopardize our chances in the next election.

HT: Kos