The Economist points out the absurdity of the Bush administration's position on telecom immunity with a post headlined "If we punish lawbreaking, they might not break the law again". I listened to CSPAN yesterday while driving home, and I could swear I heard a Republican legislator make an even more bizarre assertion: that congress shouldn't use its investigative powers to go after the telecoms, because otherwise they wouldn't voluntarily cooperate with the investigation. Since this seemed to be made in response to claims that they were not cooperating with the investigation, I had a hard time understanding what we, the American people, would be losing by this.
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Telecom immunity: a festival of the bizarre
29 Feb 2008 10:19 am
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MM wrote: I had a hard time understanding what we, the American people, would be losing by this.
Yet another exciting reason why you probably should have read Liberal Fascism. Once you get around the requisite polemic tone that is scattered about the piece, the book contains a truly fascinating amount of well-researched history. One of the angles discussed at length is the perenniel effort to marry Big Government to Big Business in symbiotic "cooperation" (rather than outright control of one over the other).
Seriously, it just hit the NYT #1 position. You now have an excuse for reading it without worrying What Your Friends Will Think.
I thought Megan rides a bicycle to work, doesn't own an automobile, and her zipcar privileges have been abruptly terminated, so how was she "driving home?"
The Bush Administration has to make a firewall of telecom immunity to prevent civil suits from publicizing the details of telecom surveillance. It's not about saving the telecoms from damages or embarassment, it's about protecting methods.
It's a classic Orwellian situation, where the real argument is too bloody-minded to be publicly acceptable, so we get absurdist doublespeak instead.
One of the angles discussed at length is the perenniel effort to marry Big Government to Big Business in symbiotic "cooperation"
How is this a policy of liberal fascism when it's the Bush administration doing it?
One of the angles discussed at length is the perenniel effort to marry Big Government to Big Business in symbiotic "cooperation"
How could that be a phenomenon of the left, though? I mean in a more global sense of leftism, a socialist left. Surely a true leftist would want to destroy the Big Business and replace it with a nationalized, governmental business-surrogate?
Justin,
Jonah Goldberg does say that there are elements of liberal fascism in the Bush Administration, just to a lesser degree than in the Wilson administration in World War I. I don't know what he thinks about telecom immunity, though.
Jonah Goldberg does say that there are elements of liberal fascism in the Bush Administration, just to a lesser degree than in the Wilson administration in World War I.
This jibes, then, with a common criticism of the book: That the "liberal fascism" Goldberg identifies is so diffuse as to be meaningless. I have trouble imagining a less liberal administration than Bush on anything except government spending.
Justin, that's kinda like saying you can't imagine a less competent golfer than Tiger Woods, except for all the missing strokes at the end of the round. The prescription drug benefit was an expansion of the one of the signature programs of the Democratic Party. Bush signed a bill, McCain Feingold, that fufuilled one of the primary goals of the Democratic Party, regulating the content and volume of political speech. No Child Left Behind was Democratic statism at it's best. Time after time, Bush imitated Nixon's effort to buy support for his foreign policy via domestic politics which largely were in synch with standard thought within the Democratic Party.
This jibes, then, with a common criticism of the book: That the "liberal fascism" Goldberg identifies is so diffuse as to be meaningless.
There's some element of truth in that, and IMO it's one of the weakeness in the later chapters of the book: Goldberg overstates the case and the writing takes on a vaguely conspiratorial tone as a result. However, it is worth noting that the Bush Administration's big-government approach is a deviation from traditional conservative goals, and is hardly different from both traditional and modern American Progressivism's goals, as Will Allen states. Bush just doesn't get credit for it because he identifies himself with the "wrong" team.
Are we talking about two different things here? Freddie refers to warrants, which the government usually would need to listen to actual conversations (I leave out all the executive power debates). The Economist refers to information-disclosure laws, which would protect not the conversations but rather info such as your calling records. But calling records do not, and have never, required a warrant for the government to get access, just a subpoena or perhaps just a friendly request. Rightly or wrongly, they aren't considered subject to a "reasonable expectation of privacy."
What does the proposed immunity cover? Actual wiretaps, or just calling data?
The crazy thing about this issue, and what's too frequently lost, is that a warrant could be obtained quickly and easily-- in fact, such a warrant has never been denied.
As someone who occasionally tutors in logic, I'd like to point this out as an exercise for the interested reader: which traditional fallacy does this represent.
Megan, I'm a little disappointed at you and your former collegues. If, instead of simply dismissing Bush as disingenuous, you'd thought momentarily about the issue, there's a perfectly plausible point here. Bush asserts, and we can assume as an argument, that this was necessary under his powers to pursue the war. Now, this is arguable, but it's notable that this hasn't been pursued directly; the Legislative has always found a compromise to allow the issue not to be adjudicated. It's also worth mentioning that similar powers have been used by the Executive all the way back to the Civil War; this isn't an innovation on Bush's part.
So, now, we see a new attack: don't pursue the President's use of these powers, pursue the telecom companies under civil procedure.
From the standpoint of simple fairness, we're putting them in a situation where they, starting during the emergency situation in late 2001, agreed to co-operate. Had they not done so, the public mood then was such that they would have faced, at the least, great public outcry. Now, seven years later, they're being sued -- primarily as a proxy for the Government's actions -- for the co-operation they were unwilling and probably unable to withhold then.
Keith Olbermann had the best response to all this. If Bush is saying that we need the Private Sector to fight terror, then where have all those tax dollars for the 'GWOT' gone?
Had they not done so, the public mood then was such that they would have faced, at the least, great public outcry.
Yes! Damn fools! Help the government spy on us or else!!!!111!
Charlie,
First, the telecoms are in no danger. The choice is between an immunity bill, or a bill that reimburses the telecoms for any damages. The immunity bill is to protect the administration, not the telecom companies. Republicans are selling it as a protection of cooperative companies, because that is politically easier. If lawsuits are allowed to proceed, the nature of the information sought will become public record. It is likely to embarrass the administration.
Second, not all telecom companies cooperated. Those that did not, did not suffer retribution.
As someone who occasionally tutors in logic, I'd like to point this out as an exercise for the interested reader: which traditional fallacy does this represent.
Yes, it's true, to say that because it hasn't happened doesn't mean it won't happen in the future. But it is certainly relevant info, and I think to a degree you are responding to what you see as implied by what I've said, not what I've said itself. (Whether a warrant could be obtained quickly and easily, and whether or not one has ever been denied, is an empirical matter, not a deductive one.)
I would have to point out that criticizing what you see as the implied corollary to a statement is itself fallacious....
the nature of the information sought will become public record.
Yes, this is the issue, really. Nobody here seems able to tell me what kind of info we're talking about here, but without knowing that, it's impossible to know 1) what legal duties the telecoms had, or 2) what legal duties the government had. We're just handwaving at each other in the dark.
Charlie,
The Bush administration approached the telecoms in early 2001, before 9/11, so the public outcry angle is nonsense.
Megan's argument is based on the presumption that the telecoms broke the law. If one holds that they didn't, or even that the courts might rule they didn't because the legal case isn't clear, then one can believe that the lawsuits are a real drag on telecom cooperation with authorities because they're being sued for (potentially) legally cooperating with the government.
If you'd ever been the target of suit for a perfectly reasonable, standard practice, you wouldn't be so sanguine about this.
As others have already pointed out, your position (and the Economist's) contains a planted axiom: that the actions the telecoms are being asked to undertake are obviously, unquestionably, incontrovertibly illegal.
Needless to say, that's hardly the situation. If it were, then existing *criminal* statutes would be ample to the task of ensuring that no one went over the edge, or would be punished if they did.
But since *civil* suits are subject to a much lower threshold of proof (preponderance of the evidence vice reasonable doubt), they provide a vehicle whereby behavior that most might consider reasonable would be punished by drawing a favorable jury. And--as others have pointed out--there's nothing preventing anyone from bringing a frivolous suit that the telecoms would have to spend zillions defending, even if they ultimately win.
I'll turn your (and the Economist's) question around: what law are the telecoms likely to be breaking that requires *civil* suits to prevent?
I saw that headline and the first issue that flashed through my mind was illegal immigration.
Funny how that works, isn't it?
As to the actual issue at hand: the headline assumes the claim at issue -- namely, that the telecoms' actions were illegal. A lawsuit is merely a claim that the actions sued over constitute a recoverable injury. In the meantime, while the merits of that claim are adjudicated, the telecoms must suffer the expense of defending themselves, relief from which is the real goal of the immunity legislation.
So what's that called? "Ignorantio elenchi"? In English, "Begging the question"?
If it is not axiomatic that the telecoms actions were illegal, that does not necessarily mean that the opposite is true - that their actions were legal.
So, why not litigate it? To save AT&T "zillions" in legal bills? Please. Whatever it will be they can afford without impact on their bottom line. Have a public airing of the pros and cons.
I'm guessing Mr. Hecht was neither disappointed nor disapproving of the outcome of Goldman v. Simpson. Civil litigation as surrogate for criminal prosecution happens all the time and serves a significant purpose in our justice system.
"The crazy thing about this issue, and what's too frequently lost, is that a warrant could be obtained quickly and easily-- in fact, such a warrant has never been denied."
"Yes, it's to say that because it hasn't happened doesn't mean it won't happen in the future."
I'm not sure what the logical fallacy is, but the original statement overlooks the selection problem. The fact that a warrant has never been denied doesn't prove that warrants are easy to get, because any difficulty is taken into account when deciding whether or not to apply. Perhaps surveillance wasn't done in some cases precisely because the warrant would be too difficult to obtain - that wouldn't show up in the number of denials.
But more important is Rob Lyman's point that we don't even know if this is wiretapping or call records. I thought that it was the latter.
Have a public airing of the pros and cons.
By all means, yes. But have it in Congress, where questions of national security and privacy ought to be debated, and not in fron of 12 unelected citizens of unknown qualifications and biases.
Also, tell us what the hell the adminstration got from the telecoms which is causing the uproar.
there's nothing preventing anyone from bringing a frivolous suit that the telecoms would have to spend zillions defending, even if they ultimately win.
And how is that different than the situation that every other company is in every day of the year? The only reason a defendant needs immunity from civil suit is if they are more likely to be found liable than not. The argument that businesses are harmed by the cost of defending frivolous lawsuits is an argument in favor of tort reform in general, not an argument that a handful of specific companies should be exempted from liability for violating a specific statute during a specific window of time. Indeed, if the threat of frivolous lawsuits is the problem, then why isn't the administration demanding that the civil cause of action section of FISA be deleted in its entirety?
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The crazy thing about this issue, and what's too frequently lost, is that a warrant could be obtained quickly and easily-- in fact, such a warrant has never been denied. And, despite the "ticking bomb" scenarios people love to talk about, the truth is that this kind of surveillance is a long slog, taking lots of time and analysis. Having these judges issue warrants, even if they are largely rubber stamps, amounts to at least some kind of oversight, and would prevent someone bent on abusing the system from attempting a really egregious breach.
Posted by Freddie | February 29, 2008 11:03 AM