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Where’s My Balance Of Powers Turf War?

We truly have reached an era where the line from The American President is omnipresent:  "I was so busy trying to keep my job, that I forgot to do my job."  That one line sums up modern politics in a nutshell, doesn’t it?

The American Founders envisioned a government wherein the prerogotives of each branch would be jealously guarded by the members therein.  In an era of turf wars over control of power and dueling philosophies (literally — take a peek at Alexander Hamilton some time), the Founders had no basis of comparison for multiple layers of PAC money ponzi and overarching KStreet/corporate lobbying interests superceding even the very human emotion of defending reputation and power centers in a trade-off for more campaign money at any cost.

KagroX has a fantastic post at DailyKos that I want everyone to read.  Here’s an excerpt:

…The modern political era has been characterized by a virtual Republican lock on the White House and a Democratic lock on Congress. So it only makes sense that Republicans would want to make an all-out assault on whatever powers the Congress had, vis-a-vis the executive branch. We’ve all known that this was Dick Cheney’s primary objective all along, but it’s not just to avenge Watergate. It also makes sense because it tilts the balance toward the one branch they always have a reliable shot at winning, and means they can control the government by winning just one election, whereas — if we lose the big one — our only shot at controlling government is winning 357 elections. Any less and it’s a stalemate at best, or else a series of capitulations that spell victory for the White House, and it can last as long as any Republican president wants.

You’d think that Democrats might have a greater interest in aggressively defending the prerogatives of the legislative branch, since that’s where their power appears to lie over the long term. But strangely, that hasn’t been the case. Instead, the strategy has been to sacrifice the defense of those prerogatives in the pursuit of an all-the-eggs-in-one-basket strategy of winning the White House (and presumably never losing it again, ever), even though our record there has been spotty at best.

…some consideration really must be given to the long-term effects of the dynamic the Democratic strategy is creating….

The House passed a relatively solid FISA reform bill, in the form of the RESTORE Act, and sent it on to the Senate. But rather than consider that bill, the Senate has considered its own (as is their wont), and now embroiled itself in the difficulties that referring that bill to both the Intelligence and Judiciary committees has created. And in the middle of those difficulties, observers have noted that Senate Majority Leader Harry Reid had, under the rules at least, several options open to him, including having the Senate consider the House bill directly. It’s a relatively rare thing, but not unheard of. He opted not to do so.

In fact, though, picking up the House bill is hardly unknown. Not to long ago, in fact, we were assured that this was brilliant strategy, and it was even given a catchy nickname: "ping ponging." But today, that strategy doesn’t appear to exist among the options.

Why not? Because the House bill would be vetoed, and Bush would just pull the same trick he pulled in August: send me the bill I want, or I’ll veto what you send and force you to stay in session to deal with this "emergency." And that will end in capitulation anyway, so why not just save everyone the time and capitulate now?

Why is this even important? I’ll let reader SunnyNobility explain:

Should telcos be permitted to knowingly and willfully ignore the law and their customer agreements (and civil liberties), without their actions being exposed and without suffering the existing legal consequences?

That doesn’t conflate with emergency warrant issues.. not relevant. Also, it can’t be assumed a company acted in good faith when another, given the same facts, refused.

No company should (by virtue of power, size, co-operation) be free to ignore the law in secret without consequences – it’s hardly sadistic to insist otherwise. [If a company also took advantage and stole data (business or personal)from individuals, that is egregious. But, again, not the primary question.]

That the administration requested this action did not render it legal and the companies knew that….

Telecom companies have corporate legal departments at their disposal, as well as any number of outside counsel specialists on retainer to opine for them exactly what the FISA laws and other laws say — hired guns for CYA are not just common, they are a corporate necessity. And, as the FISA laws are fairly straightforward, one can only assume that a decision was made somewhere that the risk of utterly ignoring the law in the face of Bush Administration demands was less than the value of whatever governmental contracts and other goodies were dangled out as incentives to comply. 

And if you give a pass to one set of companies who knew damn well that their actions flouted the law but went ahead with them anyway, how many more companies are going to step up to the plate and demand the same special treatment?  Or use the same "well, the President asked us to break the law" bullshit line in their defense?  Welcome to flouting the rule of law 101:  precedent is set, and the game to avoid liability will be on, you can bank on it.

If telecom immunity is passed, without being able to continue the lawsuit against the telecom companies, we may never know — because far too many members of Congress get political donations from these companies to continue their tenure in Congress for my comfort level that they will fully hold them and the Bush Administration to account on this.  Which takes us back to square one in the analysis that Kagro did and that quote from The American President:  are we going to just sit by and let them keep their jobs — or are we going to start demanding that they do them?  What do you think?

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com