Don’t Cry For The Telcos - Bush & Cheney Are The Only Ones That Are Dying For Immunity

[Cross Posted from Emptywheel]

The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

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The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both

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It's beginning to look like "blue" skies and smooth sailing...

The GOP continues to flounder. I continue to find much heartfelt glee in this fact, and do not apologize for it. I never claimed to be non-partisan. I am an unapologetic Liberal Democrat.

Faced with Democrats running fundraising circles around Republicans -the DCCC has raised $56.6 million and has $29.2 million at its disposal, while the NRCC is sucking hind tit, having raised only $40.7 million, and showing a cash balance of $2.5 million. Faced with people not willing to bankroll losers, the lord high mucky-mucks of the GOP have resorted to recruiting obscenely wealthy individuals to run for office who can funnel millions of their own dollars into desperate efforts to buy seats. “National Republicans are in disarray, forcing them to recruit inexperienced and unprepared self-funders,” said Doug Thornell, a spokesman for the Democratic Congressional Campaign Committee.

But the news gets better for Democrats.

Democrats now hold more Governor's mansions, and that gap looks like it is going to widen. While the Democrats might not make the magic number 60 in the Senate, they are likely to get close enough that they can strongarm moderate Republicans into backing off on their obstructionist ways. If five or more seats flip, that will likely serve as a wake-up call to some of the obstreperous jackasses in Class III and Class I, and their own sense of political self-survival will kick in.

In Virginia, the magic eight ball says that Mark Warner is going to take the seat being vacated by John Warner. The seats being vacated by Domenici (N.M.) and Stevens (AK) have a good shot of going to Democrats, if for no other reason than to teach the party a lesson - the Republican candidates are going to have the foul stench of their corrupt predecessors wafting behind them. Bob Kerry is likely to replace the retiring Chuck Hagel in Nebraska, Sununu is vulnerable in New Hampshire. Graham in South Carolina might prove vulnerable because he has lashed himself so tightly to aWol and his pet war. Kentucky is likely to Ditch Mitch, Larry Craig's seat just about has to go to a Democrat, Elizabeth Dole is vulnerable, and the seat held by Gordon Smith is all but assured to flip, possibly to Portland mayor Speaker of the Oregon House Jeff Merkley, although there is still a tough Democratic primary to get through. Whoever wins it will unseat Gordon.

[P.S. Thanks to all you Oregon readers for correcting me on this point - I know better than to blog while buzzing on Robitussin and Benadryl...I lived in the Willamette Valley for a bit in the 90's and to be perfectly honest, I am echoing a friend who is a Merkley backer. To hear her tell it, he is unopposed in the primary, and I'm firing off an email, since echoing her sentiment got my fanny handed to me. I'll look a bit closer and actually dedicate a post to the Democratic primary out there to show my contrition.]

And the outlook is even more dismal in the house, where unexpected retirements have dealt setbacks to the Republican pipedream of retaking the house. And I am left to savor the schaddenfreude and hum a happy tune...

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