Saturday, October 27, 2007

The utter ridiculousness of telecom immunity

In three elegant paragraphs, Glenn Greenwald lays waste to the argument that congress should even consider - much less grant - retroactive immunity to telecom companies that cooperated with Bush's warrantless surveillance.

First, as Marty Lederman notes, the White House's willingness to disclose these documents in exchange for promises to vote for amnesty -- i.e., their use of these documents as political leverage -- demonstrates that there is no valid rationale, and never has been, for refusing to turn them over to Congress. Why would Congressional Democrats agree to give up something so extraordinary (telecom immunity) in exchange for the White House's "agreeing" to do what it is required in any event to do -- namely, comply with Congressional oversight demands for these documents?

Secondly, as any litigator will tell you, when you allow one party in possession of all documents voluntarily to show you the ones they want -- while concealing others -- the only picture you get is a distorted, biased and one-sided picture. The only mechanism for actually getting the truth is to compel the White House to turn over all documents, not to have Senators make a pilgrimage to the White House to look at the ones the White House has specially selected for them.

Finally, and most importantly, if it is really true that these magic documents show how innocent and reasonable were the telecoms' actions, then they will win in court. FISA and other statutes already provide immunity for them if they acted in good faith. There is no reason for Congress to put itself in the position of judge in this matter -- there already is a real judge in a real court presiding over these cases.