March 14, 2008
Not terrible
By Perry Willis
Today's Downsizer Dispatch . . . Change the environment. Recruit more Downsizers. Share this message with others. Quote of the Day: "To declare that in the administration of criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure conviction of a private criminal -- would bring terrible retribution." -- Justice Louis D. Brandeis (1912) Subject: Proposed PAA replacement isn't terrible Legislators legislate, even when they shouldn't. They do what they do because they are who they are. So it should come as no surprise that the House of Representatives is continuing to work on a bill to replace the so-called "Protect America Act." Sigh. Nevertheless, the current House proposal isn't terrible. In fact, there's one part of it that is downright clever, in a strategic sense. Specifically, the new bill . . .
  • Confers NO retroactive immunity on the telecom companies alleged to have assisted in the Presidents warrantless surveillance program.
  • Provides telecom companies with a way to present their defenses in secure proceedings in district court without the Administration using the "state secrets" prohibition to block those defenses.
The second provision is the clever part. It removes the Bush administration's argument that the telecom companies won't be willing to cooperate with the government in the future if they don't get retroactive immunity for past illegal actions. Whenever the Bush administration makes this argument they must mean one of two things, either . . .
  • That telecom companies will not cooperate with future requests for illegal surveillance, or . . .
  • They will not cooperate with legal requests for surveillance
If pressed for clarification the Bush administration will not admit that they mean the first thing, the illegal part, so they must mean that the telecoms will not cooperate with legal requests. But why would a telecom fail to cooperate with a legal request to engage in surveillance? Perhaps the reason is that the Bush administration constantly invokes "state secrecy" to deny the telecoms the evidence they would need to demonstrate in court that they were within the bounds of the law. Sometimes, the Bush administration won't even allow legal warrants to be fully-presented in court. The House Democratic proposal is clever because it prevents the Executive Branch from concealing its FISA warrants from the court. On a political level, as this debate goes forward, the administration must now either argue that the courts cannot be allowed to see FISA warrents, or that what they're really interested in is having future telecom cooperation in illegal surveillance. We applaud the House for what they are doing and how they are doing it. And though we haven't gotten into all the details here, overall, this bill is a much better prosposal than we expected. We think it's as good as it is because of the pressure they've received from people like you. At this point, we recommend that you encourage them to keep going in this direction. Tell both the House and Senate that you want the following (you can cut & paste this into your personal comments if you wish) . . .
I want NO retroactive immunity for the telecom companies, but I DO want them to be able to present evidence in court that they acted legally.
You can send your message here. Please also consider starting a monthly pledge to help Downsize DC grow faster. You can do that here. In addition, on my Sunday radio show, I plan to briefly discuss some of the other parts of the House Democrat's "compromise" proposal. I'm also going to interview David Weigel, a political beat reporter for Reason magazine. We'll discuss his views about what happened with the Ron Paul for President campaign. If Ron Paul and/or this House Democrat compromise interests you, please plan to tune-in via the Internet at 3:00 PM (Eastern) on Sunday. Please spread the word to others who might be interested. Reminders with additional information will be sent to you this weekend. Finally, I'm supposed to be on Jerry Hughes' radio show today (Friday) at 3:05 PM. For a station list, the show's call-in number, or to listen online, simply go to Thank you for being a part of the growing Downsize DC Army. Jim Babka President, Inc.
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