|hungry for crooks? read http://moralsurgeon.blogspot.com/2007/10/nola-rico-relocations.html |
Saturday October 27, 2007 09:46 EST
Fred Hiatt's concern over "costly litigation" for AT&T and Verizon
Of all the dumb and dishonest arguments in favor of telecom amnesty -- and there are many -- the dumbest and most dishonest is that it is unfair to subject telecoms to the "high costs" of defending against these lawsuits. It should come as no surprise, then, that this is the principal argument The Washington Post's Fred Hiatt advances today in his latest call for telecom amnesty:
As we have said, we do not believe that these companies should be held hostage to costly litigation in what is essentially a complaint about administration activities.In 2005, the total revenue of Verizon -- from telephone services alone -- was $75 billion. ATT's total 2006 revenue was $63 billion. Whatever the "costs" of defending these lawsuits are, it is a minscule -- really undetectable -- amount to these companies. Whatever the telecoms' motives are in wanting amnesty for their lawbreaking, being relieved from "costly litigation" has nothing to do with it.
Trite pseudo-populist rhetoric about the "high costs" of litigation might work when it comes to lawsuits against small businesses or individuals. There, attorneys fees and other expenses really do make lawsuits expensive to defend. But they still have to go to court to prove they did nothing wrong. That is what it means to live under "the rule of law."
And telecom lawsuits could be "costly" if telecoms are found -- without any good faith basis -- to have broken the law and/or violated the constitutional rights of their customers. But to claim that telecoms like AT&T or Verizon -- whose revenues are measured in the tens of billions of dollars -- care in the slightest about "litigation costs" from a single set of lawsuits is just preposterous, really just a stupid thing to say.
These telecoms have been participating in this "costly litigation" for the last two years and they seem to be managing:
SAN ANTONIO, Oct. 23, 2007 -- AT&T Inc. (NYSE:T) today posted strong third-quarter results and delivered its tenth consecutive quarter of double-digit growth in adjusted earnings per share. Results included an increase in wireless subscribers of 2.0 million, further advances in enterprise business trends and accelerated expansion of AT&T's next-generation TV service.Believing that the costs of litigation are relevant in the slightest to corporations like AT&T and Verizon -- as Hiatt obviously does, or at least pretends to -- is to display exactly the lack of Seriousness and Sophistication which The Washington Post Editorial Page believes itself to embody. That is additionally demonstrated by the fact that the lead counsel pursuing the case against these telecoms is a small non-profit organization with a tiny budget staffed by under-paid lawyers devoted to privacy rights and the rule of law.
And all of that is to say nothing about the snide characterization from Hiatt that these lawsuits are nothing more than "a complaint about administration activities." The lawsuits allege that telecoms violated multiple federal laws directed at telecoms that were enacted as a result of the discoveries by the Church Commission of massive invasions of the privacy rights of American citizens and decades-long abuses of surveillance powers by the Government. At least theoretically, there is still a distinction in the U.S. between the Government and corporations. Corporations do not have license to break the law because the President tells them to. Isn't it unbelievable that this even needs to be pointed out at all?
As the lead counsel in the AT&T case, Cindy Cohn, explained in the interview I conducted with her two weeks ago:
We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.In a civilized society that lives under "the rule of law," there is no such thing as a defense of: "I broke the law because I was told to." That has sort of been a basic tenet of justice in the Western World for quite some time now. In the United States, the President does not have the power to direct private actors to break the law. Think about how rancid and venal our political and media elite are that these basic principles even need to be stated, let alone defended from a full-scale assault.
* * *
A general update on the campaign to stop telecom amnesty is here.
In the NSA cases, AT&T is being represented by Sidley & Austin (.pdf), a large, fairly standard corporate law firm. Because there are multiple telecoms as defendants in these suits, the litigation costs, in some respects, end up being shared. Even assuming that these cases are generating unusually high fees, and even using net income as the standard, the "litigation costs" to telecoms is completely negligible. It does not even show up on the financial radar. If the non-profit EFF can manage to prosecute these lawsuits, AT&T and Verizon can obviously easily defend them (and indeed, it is almost certainly the case that the litigation costs borne by these litigious corporations from the lawsuits they commence against others vastly outweigh the costs they are incurring from defending the illegal surveillance suits).
The real point, of course, is that corporations -- just as is true for ordinary citizens and small companies -- can dramatically reduce their chances of being subjected to long, protracted litigation by obeying the law. Hiatt's rationale -- it's so unfair to make these poor corporations endure the costs of litigation -- would "justify" granting general amnesty to corporations for all illegal behavior, i.e., it would eviscerate the rule of law. We want there to be a price to pay when private actors violate the law. But the "price" which AT&T, Verizon and others are paying from "litigation costs" is so miniscule that to cite it as a reason to give amnesty is either incredibly ignorant or purposefully dishonest.
Demonstrating the increasing significance of these efforts, Chris Dodd has now been invited to appear this Sunday on Meet the Press, where he will be the only guest for the entire hour. His stance in defending the Constitution generally, and his specific efforts to stop telecom amnesty and warrantless eavesdropping, will undoubtedly be a major topic (see Dodd's superb Senate floor speech this week on these issues here).
As things stand, the FISA bill is currently in the Senate Judiciary Committee where Chairman Pat Leahy, at least thus far, is reportedly committed to stripping the amnesty provision out of the bill. Having this bill come to the floor without amnesty in it would force the Republicans to offer it as an amendment and would mean they would need 60 votes specifically in favor of amnesty in order to put it back in (because Dodd would filibuster any such amendment).
That is much harder to accomplish than having the bill reach the floor with amnesty already in it and then have to drum up 60 votes for the bill generally. Thus, the key right now is the Senate Judiciary Committee, and Dodd's website is the place to go to find out how to keep up the pressure there, completely with a current whip count of Committee members who are for or against amnesty.
Finally, there seems to be this notion even among members of Congress in their more enlightened moments that amnesty ought to be considered if the White House finally agrees to show them documents -- regarding the "legal justifications" for warrantless eavesdropping and the "rationale" for the telecoms' actions -- which they have been concealing thus far. But this claim makes no sense on multiple levels.
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.
If the secret documents which Dick Cheney is magnanimously agreeing to share are really as exculpatory as Cheney's good friend Jay Rockefeller claims, then the telecoms will win in court and all will be good in the Republic once again. The better the secret magic documents are for the telecoms, the less is the need for amnesty.
Granting amnesty to telecoms all because Dick Cheney showed Congress a handful of carefully selected documents which he is required to show them anyway is nothing more than an exercise in deceit -- enabling Congressional Democrats to claim that they went along with amnesty only because they "forced" the administration into this meaningless "concession." If Congressional Democrats end up voting for amnesty, nobody should be the slightest bit fooled by what will be their claim that they did so only because they stood firm and "forced" the White House to show them these documents.
Additionally, Obama’s campaign has been sending the following statement via e-mail to anyone who inquired and/or complained about his original FISA statement:
That is a solid, principled statement and a clear list of commitments on constitutional and rule of law issues (contrast that with this interview which Clinton gave to Michael Tomasky in which Clinton, when asked about the series of Bush executive power abuses, can bring herself only to promise that she’s “gonna have to review everything they’ve done” — the same worthless “study” language she included in her FISA statement last night).
Finally, Chris Dodd continues to back up his pretty words with actions — which, at this point, is all that really matters. His campaign provides here instructions for calling the key Judiciary Committee members (along with a “citizen-generated whip count” to keep track of each member’s position on amnesty), along with detailed instructions outlining his plan to stop it.
The statements from Richardson and Obama today were both encouraging, but statements, at the point where we are, are simply not enough. As Atrios said today:
Most Senate Democrats voted “the right way” on the Military Commissions Act, but they failed and refused to play any meaningful role in the debate, even failing to speak out against it until the very last day, by which point passage was ensured. “Leadership” requires much, more more than obligatorily issued statements and meaningless votes cast on the “right side” that can be touted in a campaign. That is what is being sought, and — by leading the filibuster and speaking out aggressively on the evils of amnesty — it is what Dodd has been providing. It isn’t too late for the other candidates to do so, too. These efforts are about encouraging that to happen.
The next step of our campaign — to be launched over the next couple of days — will be directed at Harry Reid and several other key Senators. Reid, in particular, has an obligation to lead here and speak out in support of the filibuster in light of his previous failure even to indicate that he will extend basic Senatorial courtesy by honoring Dodd’s hold.
The most significant and encouraging aspect of all of this, by far, has been that all of this has happened solely because tens of thousands of people devoted to the rule of law and our basic Constitutional liberties have demanded it. That has single-handedly catalyzed Dodd’s leadership, compelled the other candidates to speak out against amnesty, and has forced attention to be paid to these issues. That progress — all achieved in barely a single week — is significant and should not be overlooked [except it might have not occurred without an underdog's need to shine /js.]
– Glenn Greenwald
October 27, 2007 The Dodge on Retroactive Immunity
Observe in the superb CPAC video produced by Max Blumenthal how Coulter immediately mocks his physical appearance as soon as she realizes that he is a liberal. And the crowd finds it hilarious. That is what she does. She takes liberal males, emasculates them, depicts them as "faggots" and weak losers, and thereby makes the throngs of weak and insecure followers who revere her feel masculine and strong. There is no way that the right-wing movement can shun her because what she does is indispensible to the entire spectacle. What she does is merely a more explicit re-inforcement of every central theme which the right-wing movement embraces.
Whatever else is true, let us dispense with the myth that Coulter is some sort of fringe or discredited figure among conservatives. That such a claim is pure myth is self-evident and has been for some time. But journalists who do not rely on such evidence can at least rely on Michelle Malkin's assurances: "She's very popular among conservatives." Now the simple task for journalists is to ask why that is and what that means about this movement.
UPDATE: Atrios posts one of the most stomach-turning though illustrative episodes, where various key media stars swooned over the very embodiment of right-wing contrived masculinity.
Get your Rapture hats ready, kiddies! The sky is falling, and our wise gift of nuclear winter will propel us all into the loving arms of the all-knowing and all-everywhere G-d.
How Much 4That FISA in the Window?
- ► 2008 (18)
- ▼ 10/28 - 11/04 (6)
- ► 2006 (159)