The more I think about it, the madder I get. Here are the Republicans wasting our time again with another big lie. The big lie is that Congress can give immunity to the telecomm companies for their part in the (no longer) secret invasion of our privacy.
At first, I didn’t think too much about this. I just thought it was another attempt by the Bush Administration to help out their friends in the telecommunication industry. I figured that they wanted to bully the Democrats into helping them out. But then I realized that they weren’t even being honest about this. Because Congress can’t grant the telecoms immunity. They violated the Constitution. They need a constitutional amendment to save their skins.
At first, I thought this was a political battle and I asked people to use political power to fight it. Our main political power is in the Democratic primaries next year, especially the primaries for House seats because these are very sensitive to public opinion and there are typically multiple challengers for each of these seats. I urged people to use those primaries:
Forget Complaining, Act
The way to get these people to stop is to put our time, money and votes where they make the most difference--the Democratic congressional primaries. Next year, all the Democrats [in the House] will be up for re-election.
We've been giving them a free ride. We need to find and support their challengers in the next election. That's the only thing that will get their attention.
Democrats have somewhere else to go. They can go to other Democrats.
I've blogged on this here: Where Democrats Are Going, Kos. [Note: This would be a good place to take a diversion and go read that diary, too.]
Join me in my Liberal 50-State Strategy to run someone noticeably more liberal than the current office holder--be they Republican or be they Democrat--in every Congressional primary next year. This is the only way we will eventually win our elections. Make exceptions for the real Democrats who are in office, if you will, but keep up the pressure. It's good for the party and it's good for the country. Please find and support challengers to all members of Congress that don't line up with our values, regardless of their party. You can help them by entering them in the Contenders Registry.
After some thought, though, I realized that this isn’t just an ordinary political battle. It’s a battle by the White House to save their own skins. Because if these suits go forward, they will provide a wealth of evidence that will lead right to illegal behavior in the administration. That’s why I wrote;
They're All In
If they don't get this immunity, the whole thing may unravel for them. If the suits go forward, it will create a mountain of evidence against them, and that will be a gold mine for criminal investigations.
This is really about whether they go to jail, in the end, isn't it?
Unfortunately for them, Congress is not empowered to give immunity to the telephone companies over a Constitutional violation. They would need a constitutional amendment for that. Not that we should declare victory and go home, but the truth is that they are really desperate. They think that they can get this passed and then they will argue that what they were doing was supported by Congress.
Eventually, the long arm of the law will get them. It's just going to take courage and a lot of digging to make it happen.
Every time this comes up they are saying the equivalent of "I am not a crook!"
Yeah. Right. Keep talking, Nixon's Ghost.
But then I realized that this is just another example of The Big Lie:
The more I think about it, the more I think this is another example of The Big Lie. In this case, the Big Lie is:
"Congress can grant immunity to the telecomm companies."
They have a very serious problem. Their problem is that this isn't just a violation of federal law. That would be bad enough, because changing the law to fit the individual case would make immunity an ex post facto law, and I would argue that this isn't valid.
Article I, Section 9
...
Clause 3: No Bill of Attainder or ex post facto Law shall be passed.
But it goes deeper than that. The violations here are violations of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The telecomm companies might argue that they aren't subject to the Fourth Amendment based on precedent. But that's a very weak argument for two reasons.
The first reason is that it isn't in the text of the Constitution. There's only one place I know in the Constitution where rights are protected only with regard to the government, and that's the First Amendment (where it says "Congress shall make no law ..."). All the rest of the Bill of Rights and the Fourteenth Amendment make no such distinction. I would argue that the rest of the protections in the Constitution apply to all entities everywhere. That is, to individuals, corporations and all government agencies (federal, state, local) and to every person, everywhere, without limit.
The second reason they have a huge problem is because they did this at the behest of a federal agency. This makes them a de facto part of the government. So, it's a constitutional case just on those grounds. If they are operating as part of an official agency of the government, then none of the precedents for companies apply. What applies is their constitutional violations of the Fourth Amendment (and other Constitutional violations) as a part of the federal government.
Congress can't make a law that invalidates any provision of the Constitution. This would be illogical in the extreme. The powers of Congress come from the Constitution, not the other way around. The powers of the Constitution are derived from the powers of the people. There's no logical way, and therefore no legal way, for Congress to give the telecomm companies immunity.
We should bring this up at every opportunity for two reasons:
First of all, it's the correct interpretation and it completely overcomes any of their actions. We need to point out The Big Lie.
Second, it's completely demoralizing to them to know that the efforts they are making are really in vain. They could go through all this, get it passed through Congress and have the President sign it, only to have it invalidated by the courts (which they must do, based on the law itself).
Democrats who sign on to this immunity should not just be castigated, they should have their heads examined. It's clear that they are not fit for office. I'd suggest a sanity hearing for them.
I don't want anyone to think we should give up fighting this in Congress. Far from it. But I think that we should take every opportunity to remind people in advance that their cause is hopeless. They are trying to hoodwink the American people. Their success depends on our silence and complicity. Don't give it to them.
Now, I understand that Senator Dodd is planning to filibuster the attempt to give these companies "immunity". Dear Senator Dodd. Please remind your colleagues that they work for us. We have a contract with them, the Constitution, and that contract has certain provisions. I’m invoking one of those provisions right now, the right of the people to petition their government for redress of grievances. For those who haven’t read the contract, which I’m afraid might be most of the Senate, it’s in this clause here:
Article I.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Note: I’ve made this diary intentionally long, just in case Senator Dodd needs material for his filibuster. He can read the whole thing into the record, including the poll. It just seems like the more we talk about this the sillier it seems to even consider granting these people "immunity". (And please use the air quotes around "immunity" if you have to read this, Senator!)