"Bush Dog Democrat" Senator Jay Rockefeller

If you’re wondering what a Bush Dog Democrat is, the term was coined by Matt Stoller at Open Left to describe Democrats who don’t disagree with Bush or Republicans on every issue. What is likely to get Rockefeller labeled as such is his op-ed in the Washington Post today about the FISA bill, specifically as it relates to legal immunity for the telecom companies that provided information to the NSA shortly after 9/11.

In the immediate aftermath of Sept. 11, the Bush administration had a choice: Aggressively pursue potential terrorists using existing laws or devise new, secret intelligence programs in uncharted legal waters.

Unfortunately, President Bush often chose the latter, and the legitimacy and effectiveness of our efforts to fight terrorism were dramatically undermined.

The president’s warrantless surveillance program and his decision to go it alone — without input from Congress or the courts — have had devastating consequences. One is that private companies, which would normally comply with legitimate national security requests, now have incentive to say no.

Okay, so far that doesn’t look like anything pro-Bush. In fact, Rockefeller is slamming him. Here’s some more:

Here’s why. Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.

Today there is significant debate about whether the underlying program — the president’s warrantless surveillance plan — was legal or violated constitutional rights. That is an important debate, and those questions must be answered.

In the meantime, however, these companies are being sued, which is unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future.

That’s pretty much common sense. The telecoms believed the requests for information to be legal and acted accordingly. If they have to wait until the legality is determined before acting then they’ll simply not offer assistance. Rockefeller continues:

Let’s be clear. First, there is no automatic amnesty. All Americans, including corporate citizens, must follow the law and be held accountable for their actions. The bill authorizes case-by-case review in the courts only when the attorney general certifies that a company’s actions were based on assurances of legality, and the court is specifically required to determine whether the attorney general abused his discretion before immunity can be granted.

Second, lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the Whitehouse’s year-long push for blanket immunity covering government officials.

Third, immunity is the only procedural mechanism that works. We decided against “substitution” (putting the government in the shoes of the companies) and “indemnification” (making the government cover all costs) because both still mistakenly place the onus on the companies rather than on the government. And we recognized that this could expose too much about our intelligence capabilities, jeopardizing collection that targets foreign threats.

So the government can still be sued if it acted illegally. If actions were taken that threatened civil liberties unduly they won’t go unpunished. Why isn’t that enough? Why the clamor for the companies to be sued? Here, I’ll show you why:

NEW YORK (CNN) — BellSouth and AT&T were added to a class-action lawsuit against Verizon Communications that alleges the companies illegally participated in a National Security Agency domestic surveillance program.

The complaint, filed in Manhattan District Court, is asking that the companies pay $200 billion in fines to their 200 million subscribers.

Attorneys Carl Mayer and Bruce Afran said that since the lawsuit was filed Friday they have been overwhelmed with calls from people wanting to join the suit.

Enough said.

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