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FISA: President Specious Opens Yap, Petulantly Stamps Foot…Again

Yesterday, President Specious raised the focus-group tested GOP "trial lawyer" talking point — never mind that it is absolutely without any foundation in fact.   Power grab over protection is a pretty transparent strategery, isn’t it?  Rep. Conyers calls them out on their transparent, baseless bluff:

“The president and House Republicans simply can’t have it both ways,” Conyers said. “They cannot argue simultaneously that the temporary August law was essential to national security, and then turn around and engineer the defeat of an extension of it.”

As Marty Lederman says:

Why would the President veto an extension of legislation that is so critical, that is necessary to prevent a "degradation of our intelligence capability"? Well, OMB offered one and only one reason for the veto threat — because the House bill did not "provid[e] retroactive liability protection."

That is to say: For President Bush, retroactive immunity for telecoms — who would only be liable in the first instance if they knowingly cooperated with unlawful requests from the Administration — is more important than preventing the degradation of our capabilities of surveilling terrorists….

Glenn has much more, including:

The claim in the Mukasey/McConnell letter that telecoms aren’t cooperating now turns out to be completely untrue since, as The Washington Post reports, "administration officials told lawmakers that the final holdout among the companies had relented and agreed to fully participate in the surveillance program."

But even if telecoms were refusing to cooperate, the reason for their refusal was not because they don’t have retroactive immunity, but rather, it’s because there is alleged uncertainty over the legality of current surveillance requests, and uncertainty over the ongoing validity of the prospective immunity provided by the PAA, because the PAA expired. If the PAA had been extended, they would be completely protected with prospective immunity for future surveillance cooperation. And, of course, the PAA would not have expired had Congressional Democrats had their way — they wanted to extend it until they could agree to a new bill. Thus, any alleged refusal on the part of telecoms to cooperate is exclusively the fault of Bush and House Republicans for forcing expiration of the PAA. That’s just true as a matter of basic logic.

But leave all of that aside for a moment. Since Mike Mukasey himself just said in this letter that spying outside of FISA is "illegal," and since it’s indisputable that the Bush administration did just that for years, doesn’t that compel him as Attorney General to commence a criminal investigation into this "illegal" conduct?

Here’s an idea: George Bush and Dick Cheney can resign themselves to following the law and get warrants like every other law enforcement and intel agency is required to do.   Because, with a lawful warrant, they can compel cooperation instead of having to bribe the telecoms for it.  If that’s actually what the Bush/Cheney folks want. 

Of course, it could be as simple as wanting to cover the rear-ends of Ed Gillespie’s former telecom lobbying clients — but why think small when you can try to game more unilateral executive power grabs, eh,  Dick

The ACLU has more.  Rule of law: now there’s a concept we can all get behind!

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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