FISA and Telecom Immunity

Last night Rob and I spent about an hour watching the video of Sen. Dodd's speech on the Senate floor yesterday in opposition of telecom immunity as part of the new FISA bill.

Most of you probably don't have an hour, but it would be a well-spent hour if you did. Sen. Dodd gives a lot of details about FISA, about the scope of spying that our government did on its citizens (think hundreds and hundreds of millions of emails -- I'd thought it was just phone calls -- regularly collecting over the course of five years), and about the current Administration's view on the rule of law. You can read the text of the speech at the same link.

Or here's a particularly good excerpt:

Indeed, Mr. President – as long as this case seems isolated and technical, they win. As long as it’s about another lawsuit buried in our legal system and nothing more, they win. The Administration is counting on the American people to see nothing bigger than that – “Nothing to see here.”

But there is plenty to see here, Mr. President – and it is so much more than a few phonecalls, a few companies, a few lawsuits.

What is at stake is nothing less than equal justice—justice that makes no exceptions. What is at stake is an open debate on security and liberty, and an end to warrantless, groundless spying.

This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear:

“Trust me.”

And that message comes straight from the mouth of this President. “Trust me.”

What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt.

But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark.

I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.

I can’t put it better than this:

“Trust me” government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.

Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan -- in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.

But again, Mr. President:

“Why should I care?”

The rule of law has rarely been in such a fragile state. Rarely has it seemed less compelling. What, after all, does the law give us anyway? It has no parades, no slogans. It lives in books and precedents. And, we are never failed to be reminded, the world is a very dangerous place.

Indeed, that is precisely the advantage seized upon, not just by this Administration but in all times, by those looking to disregard the rule of law. As James Madison, the father of our Constitution, said more than two centuries ago, “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger…from abroad.”

With the passage of this bill, his words would be one step closer to coming true. So it has never been more essential that we lend our voices to the law, and speak on its behalf.

What is this about, Mr. President?

It’s about answering the fundamental question: do we support the rule of law…or the rule of men? To me, this is our defining question—indeed it may be the defining question that confronts every generation.

This is about far more than a few telecoms – it is about contempt for the law, large and small.

Mr. President, I’ve said that warrantless wiretapping is but the latest link in a long chain of abuses when it comes to the rule of law.

This is about the Justice Department turning our nation’s highest law enforcement offices into patronage plums, and turning the impartial work of indictments and trials into the pernicious machinations of politics.

Contempt for the rule of law.

This is about Alberto Gonzales, the nation’s now-departed Attorney General, coming before Congress to give us testimony that was at best, wrong—and at worst, outright perjury.

Contempt for the rule of law – by the nation’s foremost enforcer of the law.

This is about Congress handing the president the power to designate any individual he wants as an “unlawful enemy combatant,” hold him indefinitely, and take away his right to habeas corpus—the 700-year-old right to challenge your detention.

If you think that the Military Commissions Act struck at the heart of the Constitution, you’d be understating things—it did a pretty good job on the Magna Carta while it was at it.

And if you think that this only threatens a few of us, you should understand that the writ of habeas corpus belongs to all of us—it allows anyone to challenge their detention.

Rolling back habeas rights endangers us all: Without a day in court, how can you prove that you’re entitled to a trial? How can you prove that you are innocent? In fact, without a day in court, how can you let anyone know that you have been detained at all?

Thankfully, the Supreme Court recently rebuked the President’s lawlessness and ruled that detainees do indeed have the right to challenge their detention.

Mr. President, the Military Commissions Act also gave President Bush the power some say he wanted most of all: the power to get information out of suspected terrorists—by virtually any means.

The power to use evidence gained from torture.

I don’t think you can hold the rule of law in any greater contempt than sanctioning torture, Mr. President.