Yesterday's FISA legislation passed the House without a majority of support from Democrats, who opposed the measure 105-128 in spite of the votes of Reps. Pelosi and Hoyer. A notable exception however were Democrats in competitive districts.
The Cook Political Report counts 31 incumbent Democrats as being in potentially competitive House districts, not including those who are retiring. Here is how that group of 31 voted on the legislation:
That is 23 Yeas against 8 Nays; included among the Yeas were all 6 incumbent Democrats in districts rated as "toss-up". By contrast, those Democrats in noncompetitive districts (or those who are retiring) voted against the measure 82-120. A special star of sorts should go to IN-9's Baron Hill, who was the only Democrat in a competitive Red State district to oppose the measure. Hill has run for the House five times, winning on four occasions, but never by more than 25,000 votes.
Now, one should be careful about conflating cause and effect. Did these Democrats vote for the FISA bill because they think it will help them to get re-elected? Or were they elected in 2006 because they were conservative enough Democrats to vote for this legislation in the first place?
Either way, this certainly helps to explain Nancy Pelosi's mindset.
As for Barack Obama, I'm not sure that he had much choice but to come out in support of the legislation. Was he really going to throw Nancy Pelosi under the bus and pick an intraparty fight when she was as instrumental as anybody else in Washington in getting him the nomination? Was he really going to run afoul of the Blue Dogs when they are probably his swing voters in passing some version of national health care legislation?
This was certainly a political decision on Obama's part -- but not necessarily one that had very much to do with his own electoral prospects. The FISA issue simply isn't high-profile enough to register at the national level. Instead, it was a decision made with the politics of governance in mind: not a 2008 decision, but one for 2009.
6.21.2008
Swing District Dems voted for FISA Compromise
@ 8:45 AM
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It may have been politically necessary for Obama and Pelosi, but that doesn't mean I have to like or even condone it. It seriously is disappointing that our checks and balances in the three branches have become so politicized that it becomes necessary to not use them at all. First it was not impeaching any of the administration when what they've done is worse than anything any administration previously impeached or threatened with impeachment. Now it's passing a bill which will irreversibly cover asses that shouldn't need to be covered and in ways in which no ass should ever be covered (I'm speaking of the asses of telecoms, congressmen, and people in the administration).
Right when we got back one of the rights granted in the constitution (by only a 5-4 vote among people who aren't even supposed to be politicians!) it seems that another is going to get taken away.
It's not just disappointing what they did yesterday. It was a red letter day. We need to take names and when we have a way, we need to get each and every one of those bush enablers out of office.
Bye, 4th Amendment. We loved you.
Why wait, Fractal? Glenn Greenwald is coordinating an advertising effort to pick off some of those chiefly responsible for this travesty. I've already kicked in $40, and I'll likely donate more later when I've saved up some.
We need to make some examples so these.... people who are best not accurately described in polite company will learn to respect the will of the people.
I don't even know if I can support Obama anymore. A friend of mine has been saying that as soon as he gets into office he's going to pardon the entire Bush administration just like Nixon was pardonned. I didn't want to believe that before but now I don't even have faith in justice being served there.
@6:29. My friend told me that Obama's going to enslave all the white people as soon as he gets into office. I don't know if I can support him anymore.
there's a broken link in there
Hey, uh, Fractal?
Kernerman English Multilingual Dictionary (Beta Version) - Cite This Source - Share This:
red-letter day
a day which will always be remembered because of something especially good that happened on it
Yeah, maybe Red Alert or uh let's see Red Scare or maybe even Red Dawn is what you were thinking of. Just a guess. My money's on Red Dawn based on the quasi-hysterical tone.
Aside from the constitutional issue, I thought this to be a winner for the dems. Framed in the argument "bush/McCain" assault on your freedoms, dems stalwart defenders. There must be some significant exposure in congress if immunity is stripped.
Disappointed but not surprised by the party.
I agree with Nate. In electoral politics, this would have been a winning issue for Obama (and Pelosi, and the blue dogs, by the way) to pick a fight on. However, in order to convince them of that, Obama would have had to start much earlier and devote real, quiet time with them, time he does not have in a campaign. Cheaper for him to just play it politically - "I am for compromise even though some aspects of this one are not what I would have done."
Does not make it any less of a bitter pill. Especially because when we won last round I actually let my hopes get up.
I honestly think that Obama lost over a million dollars in donations, and comparable volunteer hours, with his move yesterday.
I think you are spot about Obama making a political decision based on governing in the future.
Legislative fights have a kind of inertia and too many people online think there are heroes who come in and save the day. This fight was lost A) when Harry Reid made the Senate Intelligence Committee bill the focus of the debate and not the Senate Judiciary Committee bill and B) when both the House and Senate named conferees who supported the Senate bill. I wish people like Dodd and Feingold and Obama had put a skin in the game earlier when it matters but they didn't.
OT: Your blog is amazing. Congrats on all your success.
I'd put Bill Foster in with Baron Hill. Exclude Cook County from Illinois, and what remains is nearly as red as Indiana.
Pardon the Bush administration? Some people have lost it. The only person convicted of anything is Scooter, and Obama won't be pardoning them.
But, thank goodness, he also won't be spending his first 100 days settling old scores with the Bush administration. I'm amazed that's what some people expect when we need Iraq over, health care passed, the environment dealt with in a real way, etc. Making sure Bush and Cheney and Rice go to jail is so far down the list of priorities, I don't even see them.
This country re-elected this corrupt administration in 2004. That's a fact we've all had to deal with. Obama can't make that right, nor is he responsible to. I just want these people in our rearview mirror.
Until George Bush stole the White House, "conservatives" used to stand for "freedom," the Constitution, smaller government and strict law enforcement.
By each of these standards, opposing warrantless wiretapping is a "conservative" issue.
Any Democrat running in a "conservative" district should oppose warrantlesss wiretapping, not support it.
The only possible arguments for for supporting it are (a) support for a dictatorial Presidency, (b) support for unaccountable corporations, or (c) willingness to give up all freedoms because there are terrorists who hate us. Has Bush really transformed "conservatism" to mean this?
Compromise happens. It's not that bad, in fact it is a sign of post-partisanship.
"Post-partisan" = Democrats are split, Republicans get what they want. Pragmatism may be a good short-term strategy, but it's a terrible long-term strategy. Look at the Republicans: they occasionally take a hit for whipping their centrists so hard, but boy does it pay off in the long term. Democratcs could learn a little about short-term pain / long-term payoffs.
On a more empirical note, given that Obama's position on FISA would probably not have impacted his national campaign, can we estimate how many seats in Congress his opposition to the "compromise" would have cost us? Between 0 and, say, 4? (Any way to be empirical about this?) Not enough to affect any conceivable future legislation, I'd imagine. So is it just saving face for 20% approval Pelosi's? For "Unity"?
The list of swing districts coincides almost precisely with the list of Democrats elected in November 2006 or later -- which is no surprise, since Members in their first term are statistically far more vulnerable.
But another interesting way of looking at the vote is that Democrats elected in the first class since the revelation of Bush's illegal spying program (or in special elections thereafter) actually voted mostly in favor of retroactive immunity.
That's rather amazing.
That's probably as much a factor of having recruited a class of conservative-leaning Democrats (and "Fighting Dems") in 2006, on the theory that people would elect Democrats who looked and acted more like Republicans. It "worked." And lo, they did act like Republicans.
I think Kagro just answered fertik's question.
Evie: Clinton let the Iran-Contra bad guys go and guess who wound up in Florida for the recount and then gave us an illegal war in Iraq? There must be payback. Not for revenge, although revenge will be sweet, but for justice, and to guarantee stolen elections and illegal wars and constitution busting never happens again or doesn't happen again until everyone living now is long dead. It's not a question of getting them in the rear view mirror, they have to go to jail.
new Ipsos national poll
OBAMA 50
McCain 43
link
that's not new, 3 days old infact!
Every time that congress gets together Kucinich sets an example of behavior. Sure he said he saw UFO's and he looks a little quirky but the man votes to uphold the constitution. I wonder how Webb votes on this. Dennis Kucinich for President.
1. Is this really a function of being in a competitive race? Or, is it a function of how conservative one's district is? These two are closely correlated for Democrats. I'd would assume the latter. If Democrats were just voting for FISA because they were concerned about their electoral prospects, this does not explain the 82 Democrats who voted for FISA yet are virtually assured of winning re-election.
2. Extremely disappointing, but no longer really surprising to me, that Republicans voted so overwhelmingly in favor. I remember a time when Republicans valued the rule of law and libertarian ideals of privacy. Now, they'll vote for anything if it's couched in terms of being tough on terrorists. Aren't they the least worried about the power they're handing over to President Obama?
3. This gradual strengthing of executive power and undermining of the rule of law are a much greater existential threat to the Republic than Islamic terrorists ever were or will be. It's no wonder that libertarian leaning independents like me have abandoned the Republican party. At least the majority of the Democrats opposed it. So, even if some Democrats covered themselves in shame, they're still the only game in town since the Republicans are hopelessly worse.
4. "This was certainly a political decision on Obama's part . . . ." That's precisely what makes this decision by Obama so disappointing. As a constitutional law professor and one who spoke out so strongly on this very issue in the past, he KNOWS its importance. But, he sold out anyway.
Why are people so upset about this legislation? It makes the FISA court much stronger, and it only makes the telecoms immune if they have valid Federal docs requesting the info, which I think is proper.
It gets rid of the "well, um, he was wearing a suit and looked official, so of course we gave him all of our credit card information. What do you mean all of our customers are now victims of credit card fraud" problem, which is what I was worried about.
But this one is actually looking pretty good from where I sit. All sorts of extra restrictions that I was hoping to see.
If you're interested, I expanded on the brief analysis I offered above on my blog:
Why Do "Conservative" Democrats Support Warrantless Wiretapping?
http://www.democrats.com/why-do-conservative-democrats-support-warrantless-wiretapping
Thanks, Bob. I agree that the traditional "conservative" position of upholding the law and keeping the government off of our backs has been totally corrupted since 9/11 (not to mention running government in a "businesslike" way -- which doesn't only mean "for the benefit of business").
It's partly this kind of corruption that gives the Libertarians some leverage with otherwise 'conservatifve' voters. Even with the FISA concession, however, the Democrats including Obama hold the "left" space on the spectrum including supporting the "rule of law."
I think the worst part of the new FISA legislation isn't the retroactive immunity; it's the legitimation of the idea that the executive can justify suspension of the 4th amendment when there is an "emergency." That just opens the door for the executive to declare of a "state of emergency" not only to suspend 4th amendment rights but also 1st and 5th amendment, and even, perhaps regularly scheduled elections. (Remember the posing on that in 2004?). It was a terrible terrible concession.
The idea that this bill will finally insist that only FISA and the FISA courts can grant extraordinary, emergency searches, is absurd as long as there is a president in office who has shown a willingness to ignore the law. In fact FISA as previously written had already stated that "only" the FISA courts could grant such special search powers -- but Bush ignored it then, and he'll ignore it now, despite the explicit language of the new law.
The problem isn't this legislation but the fact that the congress between 2001-2006 failed to do its duty by conducting the oversight.
While many are critical of blue dog democrats they play a vital role in constitutional checks and balance. A Democratic President can't take his/her support in the congress for granted.
As a matter of principle I don't believe that Telecoms should be held liable if they believed that what they were doing was legal and in the national interest. Obviously the standards can not be absolute a national emergency requires a different burden of proof for legality then a routine inquiry.
Matthew, it grants immunity if the telecoms just show that the attorney general (or someone else in the administration) certified that the president said the surveillance was okay. Some of us aren't so keen on the idea that anything the president says is legal must be legal.
And what extra restrictions are you talking about? This talking point about how the legislation makes FISA the "exclusive" method for surveillance (aside from ordinary warrants) is bogus, since FISA already said it was the exclusive method. Passing a redundant law that Bush can continue to ignore isn't exactly a victory.
To watch a real patriot in action, heres Kucinich again saying all the right things and actually upholding his responsibility as a United States congressman.http://www.crooksandliars.com/2008/06/20/house-passes-new-steny-hoyerfisa-bill/
Obviously, I share the opinions of the last few posters.
I would add here that someone (a Congress member?) stated that the new FISA would also say that the 2001 AUMF could not be used a basis for justifying domestic surveillance outside the auspices of FISA. You may recall that Gonzales, in his famous "footnote" in his White Paper, had claimed such an authority, despite the fact that Congress had (as Daschle subsequently wrote) explicitly rejected the idea when the AUMF was considered.
But of course the President made his claim to extraordinary powers not so much by stretching the AUMF but on the broader "unitary executive" theory as propounded by John Yoo. Nothing in this new law will prevent such continued assertions, as we are bound to see when Bush issues a "signing statement" on this law.
Obama moves from strength to strength. This past week, he dumps campaign finance reform and caves on FISA, and his supporters don't pick up the ball and go home. It has the Republicans seething in frustration.
Charles: it has some of his supporters seething in frustration, too. But as you imply, most of us are looking at the larger picture.
I'm not real happy with it, juris, but I'm a cynical old goat who has plenty of dents in the doors when it comes to politics. The key here is that the Obamaniacs didn't throw a tantrum in the supermarket.
I think it speaks volumes. Meanwhile, McCain continues to melt. With each passing week, this is looking more and more like a 1980-style blowout, or better.
"As for Barack Obama, I'm not sure that he had much choice but to come out in support of the legislation. Was he really going to throw Nancy Pelosi under the bus and pick an intraparty fight when she was as instrumental as anybody else in Washington in getting him the nomination? Was he really going to run afoul of the Blue Dogs when they are probably his swing voters in passing some version of national health care legislation?"
This is just flat wrong! Obama could have sunk this legislation months ago by a simple phone call to Pelosi telling her he wanted the bill buried. It would have been sunk in committee until next January when he would take up FISA reform with a bill that makes more sense and doesn't have have amnesty.
NO WAY would the Congress pick a fight with him or embarrass him over this issue during the election. They would also know that there would be no point in bringing it up if the leader of the party was opposed and willing to publicly oppose this.
Thus, no public argument with the Bush Dogs would have arisen. Nobody would have been embarrassed. No damaging publicity.
The only reason the bill was brought for a vote was that Obama was in SUPPORT OF IT. He LIKES the unconstitutional powers Bush as seized and wants them for himself. He doesn't much like amnesty for telecoms, but he'll sign the bill anyway after making a futile gesture, and one that he KNOWS will fail, but which is designed to cover his ass, by opposing the Amnesty provisions in Part II of the bill. Everybody KNOWS that all attempts to strip out amnesty will fail, as Sen. Reid has already admitted. http://balkin.blogspot.com/2008/06/why-obama-kinda-likes-fisa-bill-but-he.html
Oops! The link was cut off. The article: "Why Obama Kinda Likes FISA Bill But He won't Admit It:
http://balkin.blogspot.com/2008/06/why-obama-kinda-likes-fisa-bill-but-he.html
This site also has an in depth analysis of the legal provisions of the bill that makes it comprehensible to lay persons about why this is so bad.
I wonder what you guys think about the new Newsweek poll that Obama ahead by 15%. I'd love to think that it's right but it doesn't seem possible that all the other polls are off by that much.
Hey just had a quick question,
Does the supertracker poll take into account the Gallup tracker, because I cannot see the Obama +2 points for the previous two days on that chart.
Is there a post explaining how the supertracker is calculated?
Thanks all
cugel said "NO WAY would the Congress pick a fight with him or embarrass him over this issue during the election. They would also know that there would be no point in bringing it up if the leader of the party was opposed and willing to publicly oppose this."
Digby makes the exact same point: "I do know this: they would not have made this "compromise" and then brought this to the floor without his ok, and probably without his direction. He is the leader of the Democratic Party now, in the middle of a hotly contested presidential campaign. If he didn't come to them and say to get this thing done before the fall, then they came to him and asked his permission. That's just a fact. They aren't going to do anything he doesn't want them to do."
The more I think about this, the more I think Nate is wrong in hypothesizing that Obama had no choice but to come out in support of the legislation. Balkin's and Digby's arguments make much more sense.
Nate said "This was certainly a political decision on Obama's part -- but not necessarily one that had very much to do with his own electoral prospects."
Wrong. No matter what you think about this issue, any presidential candidate's decision with less than 6 months before Election Day has very much to with the person's electoral prospects. In this case, Obama can tell liberals "Pelosi was also for it" and needed to vote with it to moderate for the general, not to mention that he is perceived by the public as weaker on national security than McCain.
He may have had good, conscience-oriented reasons to support the bill in addition to electoral reasons, but clearly electoral factors also (or primarily) mattered. His radio silence on the bill until yesterday indicates it was political.
Interesting vote analysis. You might want to use Keith Poole's data at UCSD, which predicts individual votes quite well.
They were probably already conservatives, and so they voted conservatively.
Obama could have sunk this legislation months ago by a simple phone call to Pelosi telling her he wanted the bill buried.
I think you vastly overestimate the power of a presidential candidate, and badly misread the political environment in Washington.
I also think liberals made a strategic error. The idea was not to get the phone companies to pay financial penalties -- or at least it shouldn't have been, because there isn't any financial penalty that would have mattered.
Liberals should have focused not so much on the telecom immunity aspect but on the underlying issue, which is the need for information about the surveillance. That's the real problem with the bill, but you wouldn't know it to listen to its opponents.
There are some simple, cogent arguments to make, but as usual, the liberals* who were against the bill buried them in words.
* I am NOT using the word "liberal" as an epithet here.
All this talk about this bill is silly. One Senator (Obama) or one representative is not going to rewrite the bill themselves. The Democratic leadership is at fault here for giving in. Democrats cannot be made vulnerable in an election year to Republican attacks of being "soft on terrorism". It's sad but a valid truth.
Obama could have sunk this legislation months ago by a simple phone call to Pelosi telling her he wanted the bill buried.
I don't think we can know that without knowing why Pelosi and Reid decided to bring this bill back in the first place rather than leaving things alone. In any case, I agree with some of the others that you're vastly overestimating the willingness of the congressional Democrats to jump when Obama says so. They won't even be doing that when he's president, much less when he's only the presumptive nominee recovering from deep divisions in the party.
Also, if the actions are unconstitutional, it doesn't matter what legislation Congress passes. No legislation can make them constitutional, and no one's proposed a constitutional amendment as far as I know.
This is nothing but a hypothesis:
I can imagine that the leadership, whose role is pick the winning issues and then push them, told liberals some months back that this wasn't a winning issue but that they'd allow some time for liberals to gather support for their position.
In that time, liberals did not gather additional support. Why? Taking a look at that could yield some insights into the Democratic Party's chronic inability to rally the public to many of its issues.
First off, liberals did a poor job of framing the issue. They talked about "FISA" and "Telecom Immunity" and "Civil Liberties," instead of saying what they really were doing, which was trying to find out exactly what phone calls and e-mails the government has been stealing, and why.
Secondly, and related to the first point, liberals preached to the choir. They didn't bother to reach out beyond their borders by stating the issue in terms that non-liberals could relate to.
Thirdly, I see no evidence that liberals tried to compromise and settle for a much higher-profile revelation of the nature and scope of the surveillance, using hearings to do it. Of course, this would have required them to a) get their hands dirty, something purists never want to do, and b) frame the issue in terms that non-liberals and non-policy wonks could relate to.
Isn't this, in many ways, the story of the Democratic Party over the past 35 years? Our side has got to re-learn the art of talking to the masses, or any victories will be temporary and shallow.
Rob,
If I'm not mistaken, the points plotted on the Super Tracker are aggregations of daily national polling. To read more about this, click the "methodology" label on the left side of the page--the first several posts that will come up deal with the trendline.
Cugel: Do a little research on this (instead of just thinking of something and running with it), and you'll find that Obama has been solidly against retroactive immunity for the telecom companies AND against expanding government surveillance. In his statement, he admits that the FISA compromise bill is kind of shitty but better than last year's proposals, and that he will try to remove the immunity provision in the Senate.
In this guest opinion, originally from the Chicago Tribune, a former colleague of Sen. Obama's from UChicago law school writes about the phone call he received from Obama to discuss the constitutionality of the surveillance before a vote was taken on immunity. Very impressive.
OK, since I'm too stupid to figure this out on my own, somebody help me out here.
The new FISA....
-Makes it a crime to target somebody in the U.S. (or a U.S. citizen).
-Makes it a crime for a telecom to help do an unlawful tap (ie., one in the U.S.).
-Makes the FISA court check legality after, not before.
So, if somebody uses FISA to tap between me and my mom in Ohio, the telecom will catch it if they are asked to help (because it targets a domestic), FISA will catch it, and the agent in question will be punished, and quite possibly imprisoned.
I'm sorry, but if they target somebody domestic, it should be ridiculously easy to catch. Sure, they'll tap first and get caught later, but as far as I'm concerned, that's a good thing. If you get court approval for something illegal (because you phrased it cleverly), and you get caught, you can just say the court gave you the OK and get away with it. If you want to do something illegal and then try to get the court's approval, that's a really big risk.
From what I see of this law, it's not allowed to target people in the U.S. From what I know of telecommunications, it's ridiculously easy to see if somebody is abusing this when they go to file the paperwork.
Other than the usual hyperbole, what *specific* thing are you concerned about them doing that this law lets them get away with?
matthew h, I have not read the law, so I don't know whether the following is relevant: A lot of purely domestic sessions cross international borders between Point A and Point B. This is not only true of e-mails, but increasingly of telephone calls too.
Thus, when I read that the government isn't intercepting "domestic communications," as a former telecom analyst I consider this the equivalent of saying that U.S. carbon emissions don't matter because, after all, they only enter domestic airspace.
p.s.: When the government wants to evade FISA and tap a call, it frequently relies upon foreign (read: Israeli or British) surveillance capabilities here.
Specific example: In the 1990s, when I was a securities analyst in Boston, a competitor working for a New York investment bank made a tacky joke on his company's morning sales call, referring to an attempt on Hillary Clinton's life.
He did this on the morning that Bill Clinton was traveling to Boston. He made his tasteless joke and then returned to his hotel room within a half an hour. By the time he got there, he was greeted by Secret Service agents who quizzed him about his call.
Anyone who thinks the government can't listen in is kidding themselves.
I'm amazed that's what some people expect when we need Iraq over, health care passed, the environment dealt with in a real way, etc. Making sure Bush and Cheney and Rice go to jail is so far down the list of priorities, I don't even see them.
I'm amazed at your blatant stupidity. Never punishing perpetrators of horrendous crimes, and instead rewarding them with government pensions and massive speaking fees will result in the repetition and escalation of such crimes. By the time Obama gets into office, he'll have not just Iraq to be "over" -- as if that were possible -- but Iran too (http://www.informationclearinghouse.info/article20140.htm). And your false dichotomy is absurd; a criminal prosecution of ... criminals doesn't prevent the execution of other executive functions.
Obama has said that he is imperfect and will disappoint, and he has done so big time, putting a 2009 political calculation ahead of protecting the Constitution and the rule of law. Thinking about 2009 may look like a long term strategy, but in fact it is grossly short-sighted unless one doesn't expect the Republic to last past that.
Guess what, jqb: Nixon didn't go to jail, either. The GOP forced him to resign in the hope that doing so would stave off a slaughter in the 1974 midterms. (It didn't.)
The biggest malefactors seldom get punished in the way we think they deserve. Stalin died in his bed, Hitler got to choose suicide over capture.
By the way: The bill, as written, sunsets in five years. By which time FISA will be the least of our worries.
Meanwhile, for those of you who think that Hillary would have been better on this: In January, when she was still the likely nominee, she promised to oppose telco immunity. In February, she couldn't be bothered to be present when it came up for a vote in the Senate. Obama at least showed up and voted the right way back then.
Repeal FISA is up and running. Anyone who wants to is welcome to sign up and become a Poster on it. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.
That is why we want everyone to be able to Post so they can start a conversation about an idea they have to make this happen.
Stop on by and check it out. By all means leave a comment and sign up to blog with us as we figure out what needs to be done to return our Fourth Amendment Rights and our rule of law.
http://repealfisa.wordpress.com/
Matthew,
The old FISA did all of that, too. And yet here we are, having to retroactively immunize the people who broke that perfectly clear law.
If this were a gun law, the right would have no problem at all recognizing the problem. They'd lean on their favorite old refrain: It's not that there aren't enough laws, it's that nobody's enforcing the ones we have.
Targeting a U.S. citizen at the command of the president is a crime.
So, who's prosecuting?
Contempt of Congress is a crime too. Where's the prosecution on that one?
Ah, yes. The president has ordered the prosecutors... not to prosecute.
But I'm sure this law will be, like, you know, totally different.
You don't hand this "administration" anything new. Nothing.
Kagro.
Not the people, the telecoms. The little people can still be prosecuted.
Let me give an example: torture at Gitmo.
The U.S. government was going to have the FBI handle the interrogations. The FBI agents actually ordered to do the interrogations using less-than-legal methods refused. Why? Because they could be prosecuted (well, I assume a number of them didn't want to regardless, but the excuse was that they could be prosecuted). So they ended up not doing it.
In this case, the telecom is immune to prosecution IF it fingers the 'little guy' who told them to commit the crime. Those little guys are going to be ripe for prosecution- who cares about the FBI or CIA low level agent? Not like Congress or the Feds are going to protect them. So what should happen is-
Cheney: "I don't like this guy, tap his phone".
Robert Mueller: "Yes sir, I'll have my people get on it immediately".
RM: "You, flunky! Tap this guy's phone".
Flunky: "Sure, as soon as I see a warrant".
RM: "We don't need a warrant! Tap his phone".
Flunky: "No sir"
RM: "Why not?"
Flunky: "I don't want to go to jail, sir".
RM: "Well, have the telecom do it".
Flunky: "Then they get prosecuted unless they give up my name, so I'll still end up in jail".
RM: "Well, Bush will make sure you're not prosecuted".
Flunky: "Those records will be out there forever, Bush won't be President forever. You think he's going to pardon a flunky like me? He doesn't even know who I am."
RM: "Do it or I'll make your life miserable".
Flunky: "Do you know prisoners do to FBI agents who end up in Federal prison, sir?"
RM: ....
That's the way you stop an Administration from doing something illegal. You prosecute the flunkies who actually do the work. Start doing that, and the flunkies stop helping the Adminstration.
I think this law is well designed for that.
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