Keith Olbermann gave a “Special Comment” on Monday encouraging Obama to do the right thing on FISA. Olbermann’s suggestion to try to strip immunity, vote for the bill when that fails, then promise a full criminal investigation if Obama were to become president is a rather ineffectual gesture as Olbermann describes in his comment. Olbermann is correct when he says it frees telecoms from civil, not criminal prosecution. However, Glenn Greenwald points out the glaring flaw in the analysis.
That the FISA bill only immunizes telecoms from civil but not criminal liability isn’t some mystical discovery generated by John Dean’s Talmudic examination of the fine print, but rather, is something that was crystal clear and known to everyone for a long time. Indeed, from the start, the Bush administration only proposed, and telecoms only sought, immunity from civil — not criminal — liability. That’s because criminal prosecution would be extremely difficult, if not impossible, and beyond that, Bush could and likely will simply pardon telecoms from prosecution before he leaves office (nobody who has watched the last seven years would believe that Bush would be deterred because pardons are deemed by courts to be technical admissions of some level of guilt, and those asserting that pardons can’t be issued until there are charges brought simply don’t know what they’re talking about).
Immunizing telecoms from civil liability will ensure that the vast lawlessness of the Bush Administration is never aired in a court of law. They have already knowingly broke the law. We already know that they have a vast array of legal opinions from the likes of John Yoo and Alberto Gonzales that basically say the president can do what ever he wants in a commander-in-chief capacity. The executive branch has turned any congressional oversight into a complete and utter farce. This is precisely because Congress is unwilling to use the one tool they have for curtailing an out of control presidency: impeachment.
That said, it is not the case that the legal opinions of the presidential advisers are law. In fact, they are most likely intended to shore up plausible deniability, to give the president fall guys. The facade of legality only last as long as the doctrines are tacitly accepted and unchallenged. Their true test is within a court of law. There is no doubt in my mind that they will crumble under judicial scrutiny. The legal opinions were always just pretense. This is precisely why the Bush administration is so keen on getting the civil lawsuits dismissed. With a pardon it is just he said, she said, Bush will come up with something lame like: “I don’t want to see members of my administration having to defend their actions in order to protect our nation. I know they did the right thing under difficult circumstances.” And that will be it. Dismissing civil liability is giving Bush a trump card. Is Olbermann really going to be that surprised if and when the president plays it? THE DEMOCRATS ONLY GAVE IT TO HIM! IT WAS ONLY WHAT HE OBVIOUSLY PLANNED ALL ALONG! After all this time, does Olbermann really believe Bush cares what the public thinks of him?
Of course, there is Obama’s stance in the whole matter. Krugman did a good job summing the current problems with the Obama agenda. Obama might actually be centrist. However, the one attribute I thought Obama had that Clinton lacked was moral courage. The ability to stand by a principle and unabashedly defend it. Clinton seemed too willing to compromise principal to meet some political end, which I felt was particularly displayed in her attempt to get the Michigan and Florida delegates seated. So, even if Clinton had better policy papers, I thought Obama would be more effective in actually implementing something.
Telecom immunity is one of those issues that has no constituency outside of K Street. Congressional oversight has proven itself to be a complete failure because punishment is off the table. I want this administration judged in a court of law. Any other issue is largely irrelevant. What is the point of enacting new provisions when the president wasn’t following the old ones? Really, what good does that do?
For a campaign that seems to be planning on continuing popular support as part of their fund-raising strategy, Obama surely demonstrates his willing to bite the hands that feeds him. This isn’t to say Obama is worse than McCain. However, a lot of my enthusiasm for his candidacy has certainly dissipated to a degree. If his fundraising drops, he shouldn’t be wondering why.