DEMOCRATIC LEADERSHIP IN THE HOUSE FINDS A NOT VERY UNIQUE SOLUTION ON TELECOM IMMUNITY: GIVE IN TO BUSH

Looks that way. This morning's Washington Post has a story on page 3 that starts off ominously: "House and Senate Democratic leaders are headed into talks today that they say could lead to a breakthrough on legislation to revamp domestic surveillance powers and grant phone companies some form of immunity for their role in the administration's warrantless wiretapping program after the Sept. 11, 2001, terrorist attacks." Shameful!

Hoyer, always predisposed to rubber stamp as much of the Bush agenda as he can get away with rubber stamping without alerting his constituents that he isn't a real Democrat, says he polled the members and, as expected, he's come down on the side of Democratic reactionaries. The Blue Dogs are yipping in victory today and at a precedural manuever cooked up in Pelsoi's office to "allow many Democrats to vote against immunity but still make its approval all but certain."

Anticipating this move, yesterday Glenn Greenwald wrote a scathing post at Salon, House Democratic Leadership: Not Just Complicit But Also Self-destructive. As usual, Greenwald hits the nail right on the head. A couple weeks ago I was not only premature but also naive in applauding Intelligence Committee Chairman Silvestre Reyes' smoke and mirrors offensive against an out-of-control and highly dangerous Executive Branch. I withdraw every word of praise I had to say about him and recommend you judge this imbecile for himself, as he shows what he's worth on this barelu coherent CNN video.

No rational person who has watched Congressional Democrats since they took over Congress could possibly have expected them to do anything but what they always do: namely, whatever they're told to do by the White House. The last thing they were ever going to do was stand their ground over Americans' basic liberties and the rule of law, concepts about which they couldn't possibly care less.

...There's very little point anymore in writing about how the Congressional Democratic leadership is complicit in all of the worst Bush abuses, or about how craven they are. All of that is far too documented and established at this point to be worth spending any time discussing. They were never going to take a stand against warrantless eavesdropping or the destruction of the rule of law via telecom amnesty for one simple reason: many of them don't actually oppose those things, and many who claim to oppose them don't actually care about any of it. That's all a given.

But what is somewhat baffling in all of this is just how politically stupid and self-destructive their behavior is. If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. They exposed their freshmen and other swing-district members to attack ads. They caused their base and their allies to spend substantial energy and resources defending them from these attacks.

And now, after picking this fight and letting it rage for weeks, they are going to do what they always do -- just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President. They're going to cast the appearance that they engaged this battle and once again got crushed, that they ran away in fear because of the fear-mongering ads that were run and the attacks from the President. They further demoralize their own base and increase the contempt in which their base justifiably holds them (if that's possible). It's almost as though they purposely picked the path that imposed on themselves all of the political costs with no benefits.

It was great to see one of Hoyer's and Pelosi's key allies, Al Wynn fall to the wrath of an awakened electorate in MD-04. Maybe if we can repeat this 100 times they'll learn something. It would be great today to see Democrats sick of this pernicious Democratic rubber stamping of Bush-Cheney attacks on the American rule of law vote against Silvestre Reyes in today's Democratic primary where he is being opposed by political unknown Jorge Artalejo.

And why does retroactive immunity even matter? Dan Froomkin explained it thoroughly and succinctly in yesterday's Washington Post. Despite Bush's own confusion or obfuscation, the question Congress should be dealing with more seriously than Hoyer is willing to is "whether the telephone and Internet companies that for years let the government spy on their customers without a warrant should be protected from civil lawsuits alleging that they violated federal law in doing so."

Bush on Thursday argued that the telecommunications companies shouldn't be punished for patriotically carrying out legal orders. And he characterized the lawsuits as being the product of "class-action plaintiffs attorneys, [who] you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train."

The Washington Post put Bush's claim in context on Friday: "Two nonprofit groups are overseeing [the five coordinated, class-action lawsuits pending against the phone companies]: the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union of Illinois." The Post also noted that "substantial damages would be awarded only if courts rule that they participated in illegal surveillance affecting millions of people, not just communications involving terrorism suspects overseas."

...Terrorists everywhere had plenty of reason to believe that the United States was trying to spy on their electronic communications long before the New York Times broke the story of Bush's warrantless wiretapping program in December 2005.

What was new about the program was not some sort of tactical or technological breakthrough that the terrorists could overcome once alerted to its existence. What was new about the program was that it was arguably in violation of the Foreign Intelligence Surveillance Act, which forbids any form of domestic wiretapping without a warrant.

Whether the government was listening in on their calls legally or not was not material to the terrorists -- but it's hugely relevant to any American who cares about the rule of law.

...[T]elecoms can't possibly be worried about prospective immunity for following lawful orders -- that's already part of the agreed-upon legislation.

So are they actually telling the government: Unless you get us off the hook for billions in potential damages based on our past actions, we won't follow the law -- or we'll do so, but only kicking and screaming. That doesn't sound like a legitimate reason to help them out. In fact, it sounds like extortion.

Or are they simply saying that without retroactive immunity, they'll feel a greater need to be absolutely sure that what they're doing is legal? If that's the case, that sounds like a good thing. Any company being asked to do something by the government that they have plausible reason to believe is illegal should push back. Otherwise, there are no checks and balances at work. We call that a police state.

Another possibility, I suppose, is that the telecoms are balking about doing things that we don't even know about -- and are worried that they could be sued once we find out.

At any rate, none of these points argue for retroactive immunity.