Dispatches from the Creation Wars

The new FISA compromise grants immunity to the telecom companies over their cooperation with the NSA on government wiretapping without warrants. Barack Obama has been an outspoken opponent of giving such immunity, yet he says he is going to vote for the bill. And Keith Olbermann, who absolutely savaged the notion of telecom immunity in the past, is praising Obama for supporting the bill. A scant 6 months ago, Olbermann was painting pictures of Nazi oppression in opposition to telecom immunity:

This is no longer just a farce in which protecting telecoms is dressed up as protecting us from terrorists conference cells. Now it begins to look like the bureaucrats of the Third Reich, trying to protect the Krupp family, the industrial giants, re-writing the laws of Germany for their benefit.

If you're going to go that far in condemning a policy, it becomes pretty damn difficult to justify supporting someone's decision to support that policy, but Olbermann is taking a shot at it. Rather than criticizing Obama for supporting the bill, he actually praised Obama last week for "refusing to cower even to the left" on the issue, for being so independent of mind that he's "not cowering to the left, not going along with the conventional, the new conventional thinking on the FISA bill."

Except that the "new conventional thinking" was exactly the same argument Olbermann himself was making when it was only the Republicans supporting telecom immunity. Now that it's the candidate he favors, the excuses come out. And those excuses are really, really weak. At the Daily Kos, Olbermann offered a tepid defense of his change in position. First, he argued, a really smart person told him that the compromise bill only allows civil immunity, not criminal immunity:

I think it was last Thursday or Friday - dates and quotes aren't going to be exact here and you can forgive that or not - that we had John Dean on, to try to explain Senator Obama's rationalization of voting for the telecom civil immunity in the FISA bill.

Simply put, what John said quelled any anger simmering beneath my surface. Because John Dean is the smartest person I've ever met...

John said his reading of the revised FISA statute suggested it was so poorly constructed (or maybe so sublimely constructed) that it clearly did not preclude future criminal prosecution of the telecoms - it only stopped civil suits.

I have repeated his observation each night since. Maybe I didn't sell my conviction of its conclusiveness. I think John Dean is worth 25 Glenn Greenwalds (maybe 26 Keith Olbermanns).

That argument is so absurd as to be downright childish - "person X says Y and he's smarter than both of us combined, so he must be right." And by the way, it's also a serious overstatement of John Dean's position as well. Jane Hamsher at Firedoglake contacted John Dean and his statement was far more equivocal than what Olbermann attributed to him:

I said that when I read the bill, and talked to the folks at the ACLU who had been following it, that it was not clear. I raised it when appearing on Countdown with the hope that someone might figure it out. But that is the nature of this badly drafted bill that it is not clear what it does and does not do, and the drafters are not saying.

But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, so the question is whether a future DOJ could -- and here there is case law protecting the telecoms. But there may be language buried in the bill that protects them as well but it can only be found by reading the bill with a half dozen other laws which I have not yet done.

I made no declarative statements rather I only raised questions that jumped at me when reading the 114 page monster.

Not exactly a solid foundation for Olbermann's claim at all. But even if John Dean said that he's 100% certain that the bill only provided civil immunity and not criminal immunity, would that really justify accepting such a provision? Absolutely not. Civil immunity prohibits something very important; it prevents individual citizens from going to court to get an injunction preventing the telecoms from complying with wiretap requests from the executive branch without a warrant.

We know that the DOJ isn't going to bring criminal charges against the telecoms, they're run by the same people who approved of the warrantless wiretaps in the first place. Which brings us to Olbermann's second argument:

Thus, as I phrased it on the air tonight, obviously Obama kicked the left in the teeth by supporting the bill. But anybody who got as hot about this as I did would prefer to see a President Obama prosecuting the telecoms criminally, instead of seeing a Senator Obama engender more "soft on terror" crap by casting a token vote in favor of civil litigation that isn't going to pass since so many other Democrats caved anyway.

When Markos was on (Monday? Again, blurs) he made the simple but essential point that if this is Obama's rationale for this, maybe he should explain it. I think it can be argued that if he's caught the same hole in the bill that Dean has, his best course is actually to shut up and take the criticism and hope the Republicans don't see the loophole.

Seriously, there is little in the polls to suggest McCain has anything to run with other than terror (ask Charlie Black or that idiot who suggested that Black's comments owed to distraction by a reporter's cleavage - not knowing that the Fortune editor to whom Black gave it up was a guy). So why hand them a brick to hit him with - Obama Voted Against FISA - if voting Aye enhances his chances of getting himself his own Attorney General to prosecute FISA?

Let me translate that: Obama is making the politically expedient position of voting for the bill in order to maintain an image of being tough on terror in order to get elected, after which point he can bring the telecoms up on criminal charges under this "loophole" that John Dean says he might have noticed but can't be sure about. Even if this argument were true, it's a terrible idea.

First of all, even if the bill did grant immunity from civil suits but allow for criminal prosecution of the telecoms, such a case would be nearly impossible to prove. There would be no criminal intent because the telecoms were acting under assurances from the DOJ that their cooperation was legal. And it's not even clear that there is a solid criminal statute on which to base such a prosecution.

A civil suit, on the other hand, can result in an injunction to enforce the constitution and order the telecoms not to comply with any request for a wiretap other than a judicial warrant. And here's a key point: Bush can't grant a pardon from civil liability on his way out of office, as he can with any possible criminal charges. That would end any possibility of a President Obama bring criminal charges even if one did assume that he had such plans because he'd discovered such a loophole.

Olbermann's arguments on this are simply nonsense. I would rather support a bill that granted criminal immunity and not civil immunity. The chances of there ever being a successful criminal prosecution of a telecom over this issue are somewhere between slim and none, and slim is on life support. The chances of a successful civil suit are much higher and the results much more important.