The particulars of how the day will unfold are still being haggled at the moment.  Sen. Chris Dodd has objected to proceding on the Dodd/Feingold amendment to cut immunity from the SIC bill under a unanimous consent provision.  Floor speeches are ongoing — Sen. Whitehouse is up at the moment — while Dodd, Reid, and a number of other folks haggle out what will and will not happen today.  Who will stand for liberty and the rule of law? I’ll be watching…

Emptywheel quoted from the findings of the Church Committee Report yesterday, and I wanted to amplify a portion for everyone that is particularly applicable in the context of the current flouting of the FISA laws:

-The crescendo of improper intelligence activity in the latter part of the 1960s and the early 1970s shows what we must watch out for: In time of crisis, the Government will exercise its power to conduct domestic intelligence activities to the fullest extent. The distinction between legal dissent and criminal conduct is easily forgotten. Our job is to recommend means to help ensure that the distinction will always be observed.

-In an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward “big brother government.” The potential for abuse is awesome and requires special attention to fashioning restraints which not only cure past problems but anticipate and prevent the future misuse of technology.

-We cannot dismiss what we have found as isolated acts which were limited in time and confined to a few willful men. The failures to obey the law and, in the words of the oath of office, to “preserve, protect, and defend” the Constitution, have occurred repeatedly throughout administrations of both political parties going back four decades….

Which leads me to something that Bruce Fein said in an interview a while back:

…Bush’s precedents are dangerous, and will lie around like loaded weapons readily unleashed by any incumbent in times of strife or conflict, e.g., a second edition of 9/11. …as Justice Brandeis amplified, all government lawlessness is dangerous because it teaches people by its example. We are more likely to lose democracy on the installment plan like the Roman Republic as chronicled by Gibbon than by a military-industrial coup. In addition, we should never be satisfied by simply avoiding being a police state, but as Washington lectured at the Constitutional Convention, we should strive to set a standard to which the wise and honest may repair….  (emphasis mine)

With substantial power comes a concommitant and substantial responsibility to ensure that this power is neither misused nor abused in any way that runs contrary to the interests of justice, the Constitution and the rule of law.   Mary had an excellent list of issues that every American ought to have with how the flouting of the FISA laws has occurred, and she ended with this point:

Here’s a proposed compromise that makes sense and should address the concerns of needing to have corporations work with government, while protecting the equality of the three branches of government. Offer up immunity – for the time period beginning on 9/11 (but not before) and ending when the Patriot Act was passed (10-24 I think?)

That takes care of the concerns. Corporations will be protected for acting in exigent circumstances, but they need to know that if they continue to cooperate soley with the Executive, in secret, without ever receiving supporting legislation – they are then on their own and will have to rely upon Presidential pardons if they proceed past the point where legislation could legitimately have been proposed.

The prosecutor in me wants to say that breaking the law is just that and ought to be punished accordingly. The FISA laws are, after all, not all that hard to interpret for the legions of paid corporate counsel that likely pored over it for these telecoms.  But the former mediator in me sees this for the common sense solution that it is — and for the political bluff calling maneuver this could be. Unfortunately, it won’t be on the table today, but it could be if this legislation is stalled and tabled…which is exactly what could happen with a successful fillibuster.  We’ll see what happens as the day moves onward.

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