With Liberty and Justice for Some

How the Law Is Used to Destroy Equality and Protect the Powerful

Glenn Greenwald

Picador

THE UNSTOPPABLE MACHINE OF ELITE LAWLESSNESS

Once it became clear in the fall of 2007 that the White House was seriously demanding retroactive amnesty for the telecoms and that congressional Democrats were preparing to grant it, a coordinated and sustained public campaign was launched largely via the Internetto oppose telecom immunity.

In October, as the Democratic presidential primary was heating up, various blogs organized a mass call-in campaign to insist that each candidate clearly state his or her position on telecom immunity and vow to do everything possible to oppose it. In response, all of the Democratic candidates issued statements vehemently opposing amnesty for the telecoms, and Barack Obama went even farther, vowing to filibuster any bill containing such immunity. Obamas campaign spokesman, Bill Burton, put the promise in a way that could not have been more absolute: To be clear, Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.

Opponents of telecom immunity also asked Senator Chris Doddwho had made a defense of civil liberties and restoration of the rule of law a centerpiece of his campaign for the Democratic nominationto take the lead in blocking Senate enactment of the immunity. He agreed to do so and publicly announced that he would not only filibuster any bill containing amnesty for telecoms but also use his power as a senator for the first time in his career to place a so-called hold on any such bill.

The Military Commissions Act. Warrantless wiretapping. Shredding of Habeas Corpus. Torture. Extraordinary Rendition. Secret Prisons.
No more.
I have decided to place a hold on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the Presidents assault on the Constitution by illegally providing personal information on their customers without judicial authorization.

So eager were many citizens for leadership against corporate lawlessness that, as a result of this bold commitment, Dodds anemic presidential campaign received literally hundreds of thousands of dollars in donations overnight from small donors.

Hundreds of thousands of dollars were also raised from small donors to pay for political ads opposing telecom immunity. With that money, robocalls were run in the districts of Democratic leaders, such as then-House minority whip Steny Hoyer, who were signaling their support for immunity. And full-page advertisements were placed in the Washington Post in the days before the vote, warning of the threat to the rule of law posed by retroactive immunity for telecoms.

Working with Dodd, bloggers and online activist groups were able to catapult the issue of telecom immunity from the darkened back rooms in Washington where bills are typically drafted into the light of mainstream political debate. What would have otherwise been a measure quietly passed without much public notice became a genuine source of contention and conflict. Other allies in Congress were recruited to the cause, and with Dodd fulfilling his promise to use every obstructionist measure avail- able, telecom immunitywhich looked to be on the easy road of lobbyist-driven, quick, and painless bipartisan enactment lingered in Congress for months and months. In March 2008, it even appeared that the measure had suffered a potentially fatal defeat, when the Democratic-led House rejected a new FISA bill (which came complete with full-scale immunity) by a narrow margin.

But democratic activism is no match for the army of corporate money, lobbyists, national security officials, and media servants. Ordinary Americans, even when united in a coordinated campaign, may be able to delay or disrupt this limitlessly funded onslaught, but they eventually will be steamrolled by it. And thats precisely what happened.

In early July, the Democratic-controlled House passed a new FISA bill that vastly expanded the warrantless eavesdropping powers of the government, in the process legalizing most of what had previously been illegal. On July 9, 2008, the U.S. Senate did the same. Titled the FISA Amendments Act of 2008, the bill also granted full retroactive immunity, both civil and criminal, to the entire telecom industry, thus guaranteeing an end to the multiple lawsuits that had been filed against them. All possibility for further investigation into the massive spying pro- gram, and for a judicial review of its legality, permanently ended on that day.

The bill passed with the support of virtually the entire Democratic congressional leadership. Barack Obama, by then the Democratic nominee for president, blatantly violated his vow to filibuster any bill containing telecom immunity. Instead, he voted against the Dodd-sponsored filibuster; with the filibuster defeated, Obama then voted in favor of the underlying bill itself. (Hillary Clinton, no longer a presidential candidate, fulfilled her campaign promise by voting against it.) The vote in the Democratic-controlled Senate was not even close: 6928 in favor of the bill. The vote in the House was similarly lopsided (293-129), with Democrats evenly split but with the entire Democratic leadershipincluding Speaker Nancy Pelosi, Majority Leader Steny Hoyer, and Rahm Emanuelsupporting the bill.

The day after the Senate vote, President Bush celebrated the harmless end to a scandal that began almost three years earlier when the New York Times told the nation that he had been illegally spying on American citizens for years. He invited numerous leaders of both political parties to the White House for the ceremony at which the new FISA bill was signed into law.

Those members of Congress mingled with Admiral McConnell and the other national security officials who had worked so tirelessly to ensure that telecoms (and therefore the president) would be shielded from all liability. In his remarks, the president heaped particular praise on Senator Rockefeller for leading the way in ensuring the bills passage.

Very soon after Bushs signing ceremony, the telecoms filed papers in the federal court where the lawsuits against them were proceeding andciting the immunity they had just received demanded the summary dismissal of those suits. The judges, their hands bound by the new law, threw those cases out of court, and the telecoms were forever shielded from paying any compensation to the customers whose privacy they had sacrificed. They were also shielded from any criminal investigations or prosecutions for those crimes.

The Washington establishment and the telecom industry exulted over their great victory, and understandably so. It signaled that there is literally no limit on the ability of corporate elites, using their control of government, to be immunized from the rule of law, potently foreshadowing Wall Streets full-scale protection after the 2008 financial crisis.

The telecom industry issued fulsome expressions of gratitude. As it happened, the new FISA bill was passed shortly before the Democratic National Convention was to meet in Denver and formally announce Barack Obama as the partys presidential nominee. Within two weeks after the bills passage, the steering committee of the DNC unveiled AT&Ts generous sponsorship of various aspects of the convention, including products such as an AT&T-branded tote bag to be distributed to all convention delegates.

At the convention itself, AT&Ts signature globe was prominently placed at virtually every DNC event. While this sponsor- ship was relatively trivial from a financial perspective, few things were more appropriate than having a telecom logo hover over the Democratic Partys principal gathering. After all, the party had just delivered an extraordinary gift to that industry. The omnipresence of AT&T was a refreshingly, if not intention- ally, honest expression of the Democrats true allegiance.

The second day of the Democratic convention fell on August 25, 2008. That night, at the Mile High Stationnext to Invesco Stadium, where Barack Obama was to accept the partys nomination in front of a crowd of eighty thousand people two nights laterAT&T threw a lavish private party for Blue Dog House Democrats. This was one of the listings for the event:

8 P.M.

Just because the Blue Dogs are scally conservative doesnt mean they cant have a good time, especially when AT&T is picking up the bill. Mile High Station,

2027 W. Lower Colfax Ave. By invitation.

Armed with full-scale convention press credentials issued by the DNC (though lacking an invitation to the party), I went with several other people to report on the festivities. Deployed around the building was a wall of private security guards, who informed us that the press was barred from the gatheringeven though what was taking place inside was a meeting between one of the nations largest corporations and the numerous members of one of the most influential elected factions in Congress.

Denied access to the building, we stood in front of the entrance and began videotaping and trying to interview the parade of Blue Dog representatives, AT&T executives, assorted lobbyists, and convention delegates pulling up in their rented limousines, chauffeured cars, and SUVs. We wanted to find out who was attending and why AT&T would be throwing such a lavish party for the Blue Dog members of Congress.

Amazingly, not a single one of the twenty-five to thirty people we tried to interview would speak to us about who they were, how they got invited, what the partys purpose was, or why they were there. One attendee said that he was with an energy company, and another confessed that she was affiliated with a trade association, but this was the full extent of anyones willingness to describe themselves or this event. After just a few minutes, the private security teams demanded that we leave. When we refused and continued trying to interview the reticent attendees, the Denver police forced us to move farther and farther away from the entrance until finally we were unable to approach any more of the arriving guests.

It was really the perfect symbol for how the Beltway political system functions: those who dictate the nations laws (the largest corporations and their lobbyists) cavorting with those who are elected to write those laws (members of Congress) while completely prohibiting the public from having any access to and knowledge oflet alone involvement inwhat they are doing. All of this was arranged by AT&T, the corporation that paid for a substantial part of the Democrats national convention after having just received an extraordinary gift of retroactive amnesty from the Congress controlled by that party. And all of it took place right next to the stadium where the Democratic presidential nominee who had spent months righteously claiming that, if elected, he would cleanse the Beltway of corporate and lobbying influenceswas to accept the presidential nomination.

The telecom immunity law was one of the most striking pieces of evidence demonstrating that the royal Beltway court and its corporate partners placed themselves above and beyond the reach of the law even for the most blatant transgressions. But more important, it also proved that they no longer cared who knew it. And the vital enabling role that the Democratic Party and Barack Obama played in those events was a powerful fore- shadowing of howonce they consolidated their hold on political powerthe Democrats would not just maintain, but entrench and expand, this culture of elite impunity.

Copyright © 2011 Glenn Greenwald