Freaking Hilarious

A pretty incredible speech from Sen. Russ Feingold today on the pending vote to authorize vast new warrantless wiretapping privileges to the executive branch and to grant retroactive immunity to telecoms that allegedly participated in illegal spying programs. 

The main reason that pundits put forward in supporting immunity is that, post 9/11, the telecoms were doing their patriotic duty by complying with government requests and therefore shouldn’t be punished for giving what was asked of them.  The below excerpt from Feingold’s speech puts this argument in its place:

Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.

Telephone companies have a long history of receiving requests for assistance from the government. That’s because telephone companies have access to a wealth of private information about Americans – information that can be a very useful tool for law enforcement. But that very same access to private communications means that telephone companies are in a unique position of responsibility and public trust. And yet, before FISA, there were basically no rules to help the phone companies resolve the tension between the government’s requests for assistance in foreign intelligence investigations and the companies’ responsibilities to their customers.

This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives – and even Martin Luther King Jr.

Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government’s request for assistance was a lawful one. That approach would leave the companies in a permanent state of legal uncertainty about their obligations.

So Congress devised a system that would take the guesswork out of it completely. Under that system, which was in place in 2001, and is still in place today, the companies’ legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability. If the proper documentation has not been submitted, the company must refuse the government’s request, or be subject to possible liability in the courts.

The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water.

If they received the appropriate legal documents, they should prove it.  If they didn’t, then they broke the law.  Though he has vowed to fight for an amendment stripping immunity from the bill, Obama will still support the bill even if the amendment doesn’t pass.  Send an e-mail to his campaign to yell at him for this.

Also, Glenn Greenwald is basically the authoritative source for all things FISA.  There’s plenty more where this came from. 

Couple this with Obama’s refreshingly complex and intelligent speech on race, and it seems that actual discourse and acknowledgement of the importance of history and historical constructions might make a resurgence.  Matthews is a silly, silly man, but it’s hard not to respect him here for pointing out the difference between ”Public Intelluctual” and “Pundit.”   

This is the kind of stuff that I live for (don’t judge me):  a tale concerning potentially unconstitutional appointments of patent judges, the ramifications of which could be the reevaluation of a slew of cases involving billions of dollars.  Looks like this just slipped by people for the last 8 years.