Why Congressional Democrats may be justified in giving Telecoms immunity

[HamdenRice]

I realize that most progressives feel very strongly that it is wrong to give the telecom companies immunity for cooperating with the Bush administration and the National Security Agency by engaging in a criminal pattern of warrantless wiretapping and massive electronic surveillance. I also believe that the telecom companies should not be given immunity.

But I'm beginning to believe that this is a topic about which reasonable Democrats can disagree. The Congressional Democrats have done a bad job of communicating any rationale for why the telecoms deserve immunity. But if I had to make the argument for them, I think I could come up with a pretty good reason. That reason is illustrated by the case of Qwest and its CEO, Joseph P. Nacchio, who currently is appealing a conviction for insider trading that carried what seems to be a comparatively excessive six year prison sentence. Harper's Scott Horton has a terrific summary of that case, entitled appropriately, "Qwest: Another Political Prosecution?"

Nacchio is the one telecom CEO who refused to go along with the Bush administration's plan to engage in massive warrantless surveillance of telecommunications. Nacchio also broke the astounding story that the Bush administration approached Qwest long before September 11, 2001. The administration has always argued that it needed these surveillance powers because of the 9/11 attacks, but Nacchio has told the press via the Rocky Mountain News that the Bush administration asked for his cooperation in wiretapping in February 2001 -- just weeks after they took office, and long before the 9/11 attacks provided any plausible rationale for such surveillance. Both before and after 9/11, Nacchio told the NSA that he could not cooperate because to do so was illegal -- that it would have been a felony to do so.

At the same time that Nacchio was declining to participate in the telecommunications surveillance scheme, Nacchio engaged in a pattern of stock sales in his own company's shares that six years later would lead to his felony conviction for insider trading. Nacchio is accused of selling shares during the spring and summer of 2001, while telling the public that Qwest expected to meet optimistic earnings targets based on expected massive government contracts -- reported to be $100 million. The insider trading prosecution would later assert that Nacchio knew that those earnings targets would not be met. His selling -- getting out while the getting was good -- was classic insider trading behavior.

There's just one huge problem with the government's case, however. Nacchio now claims that the very contracts he was telling the public were coming, were withdrawn by the very administration that was pressuring him to commit a felony. If Nacchio is telling the truth, then when he was selling, he was actually expecting his sales to be highly unprofitable. He would be selling low when he expected the stock prise to rise, rather than fall. If you want to get conspiratorial about it, it's possible that the Bush administration manipulated Qwest's stock price (by withdrawing contracts) in a way that turned Nacchio's losing trades (motivated by personal problems) into winning trades and hence into an insider trading case.

In fact, Nacchio contends that the insider trading case itself is part of a pattern of retaliation against himself and Qwest for refusing to go along with the illegal wiretaps. That makes Nacchio the corporate equivalent of imprisoned Alabama governor Don Siegelman.

Now let's put the telecom immunity issue in this context. If Nacchio is telling the truth, then the Bush administration was bullying the telecoms into committing felonies from February 2001 and after 9/11. At the same time, it was obvious to other telecoms that Qwest was being made an example of. Each telecom CEO had a choice -- commit the felony or face retaliation in the form of hundreds of millions in lost revenue as a result of withdrawn contracts. This put the telecom CEOs in the bind of either complying with Bush administration demands or losing his or her shareholders billions in value.

Under these circumstances, it is possible to make the argument that private lawsuits against the telecoms are somewhat unfair. I wouldn't buy that argument; I think everyone has the duty to obey the law, even when the government asks you to break it. But it is, I think, something over which reasonable people can disagree. I wouldn't vilify Congressional Democrats for supporting telecom immunity, if they would just explain what's really going on.

Moreover, private lawsuits for damages are going to punish the shareholders, not the CEOs who went along with the felonies. (All CEOs have "indemnification" agreements with their companies, so any damages payable by the CEO personally will be reimbursed by the corporation.)

In other words, the best argument is that the purpose of telecom immunity is to prevent the wrong people from being punished. The right people to be punished are the Bush administration officials who came up with the surveillance scheme in the first place.

In other words, the real reason the Congressional Democrats won't explain why the telecoms deserve immunity is -- once again -- they would have to admit and explain a massive pattern of impeachable offenses by Bush administration officials, which of course would demand investigation and impeachment itself.

So I won't hold my breath for a reasonable explanation for what's really going on.

[Afje]

1. If congressional Dems. had a good reason for this,

they would say so. They were complicit - that's the reason.

[HamdenRice]

3. OK, so if the Dems are complicit

why should the telecom stockholders pay?

[Afje]

7. Congr. Dems. didn't swear an oath to defend

the profits of shareholders. They swore to defend the Constitution.

[HamdenRice]

9. The Constitution forbids taking of property without due process of law

If the telecoms were blackmailed into commiting felonies, would a civil suit for what was essentially a criminal Bush administration scheme be a taking of property without due process?

[Afje]

12. What property are you talking about?

Are you talking about expected returns??? Stocks go down all the time for all kinds of reasons. Telecom stocks are no different. That's the risk you take with the "free market"

[HamdenRice]

13. No, the damages.

The damages (which may run in the tens of millions) against the telecoms for caving in to the Bush administration's demands that it commit felonies -- damages that will be paid out of the value of the shareholders' shares.

Suppose a police officer comes to your house and holds a gun to your head. He takes you to the local convenience store. He hands you a toy gun and says, "go rob that convenience store; I'll have my gun trained on you the whole time." You rob the conveniece store and turn over the proceeds of the robbery to the police officer.

After a few weeks you are caught. The convenience store owner sues you (not the police officer nor the police department) for civil damages for assault and intentional infliction of emotional distress.

If the court awards damages to the convenience store against you for tens of thousands of dollars, would that be a taking of your property by the government (the police department) without due process of law?

I'm just asking your opinion.

[ThomWV]

2. I'm afraid that logic seems too far twisted to me

I have a lot simpler reason they did it. They are complicit.

[Echo In Light]

4. Bingo. Corporate mafia: no one wants to upset the apple cart

[leftchick]

11. yep, short and sweet

the democrats benefit financially from Telecoms. Check out Rockefeller for instance.

[acmavm]

5. This is absolute and utter bullshit. I read this whole post and

I even saw/read/understand that there was a lot of hemming, hawing, and hedging there at the bottom. But there is NO JUSTIFICATION that allows for the wholesale invasion of the privacy of the American people. And collusion by any democrat is unacceptable. Especially when the justification is money.

It's way past time people quit messing around and making excused and started saying THIS IS WRONG AND IT WILL NOT BE TOLERTATED.

[HamdenRice]

8. So does political prosecution bother you?

Just asking. Are you saying you think that Nacchio is lying (to save his ass) or that even if he is telling the truth, then it was the telecoms and not the Bush administration that set the felony in motion?

[acmavm]

17. They (the telecoms) had a moral and legal obligation to tell

the criminal cabal to fuck off. They didn't. And do you know why? I do. For access and money.

Everyone has the responsibility to do right. But corporate America, when they can see a way to get some influence and money, will crap all over the plebs. EVERY DAMN TIME.

And they can get away with it because people are sooo ready, willing, and able to make excuses for 'em.

The guilt here is 50-50.

[HamdenRice]

18. You would risk $100 million in contracts and malicious prosecution by the feds

I believe you, but it's fairly easy to talk about what we would do hypothetically. I suspect they decided to go along with the government in the hope that they would get immunity, which is just what Bush is trying to give them. I suspect some Democrats are going along, not just because they are "part of it" but because they actually think under the circumstances it's fair. Not saying it is, but I can see how some would think it is.

[acmavm]

19. What the fuck ever? Do you have no idea as to why we're in the

mess that we're in? Because of this crooked administration and the crooked corporations that support them.

Is the concept of right vs. wrong totally irrelevant?

I divorced a guy who was awarded 2.4 million dollars by a jury against the MP. He fell down our basement stairs. He sued the MP and he was awarded the biggest settlement as of that date. I knew full well that I couldn't touch his money if I divorced him. I did it anyway because I AM NOT A LIAR OR A THIEF. I have never, not once, regretted it.

He moved out of the state because he couldn't face anyone. It was well-known what he was doing. But they tried the case in St. Louis and stocked the jury with minorities who hated corporations. While I hate corporate America myself, I do not feel that I am justified to steal from them because they steal from me.

So, would I do it??? Buddy, I already fucking did.

[C_U_L8R]

6. Well if they do get immunity.....

I expect that our good congressfolks will haul them up to
testify as to exactly what is happening and WHO has ordered
them to commit these illegal acts. AND with their immunity,
they won't be able to plead the 5th. At least we can lock
this administration away.

That's what we call making chicken salad out of chicken shit.

[HamdenRice]

10. Thanks! That's exactly the point

This was a much bigger criminal conspiracy that leads to the White House and impeachment, not necessarily civil suits against telecoms that were coerced into participating.

[Afje]

14. If Dems. wanted to impeach they didn't have to wait

on the telecoms to give 'em grounds to do it. They don't want to impeach and that's that. As to telecom immunity, they are doing that because it also gives Bush immunity. Telecom immunity includes by definition the approval of two condition precedents: Bush had constitutional authority for the warrantless surveillance and the surveillance was determined to be lawful. Under the doctrine of Congressional ratification, the effect of this approval is to retroactively "legalize" Bush's authority and program. This means that Bush may have immunity from prosecution. Moreover, for years, Bush could not cite any statutory authority for his theory of unitary presidential prerogatives. Bush will now have precedent.

[HamdenRice]

15. But that's my point

I think "telecom immunity" is a red herring. Somehow the media, even the progressive media, have fallen for a rovian trick of focusing on a tree instead of the forest. Everyone is up in arms about "telecom immunity" rather than the underlying crime -- illegal, warrantless wiretapping.

[L. Coyote]

16. "Under these circumstances" is a hypothetical scenario.

And the idea that a pack of crooks should get off scott free because there is a leader to prosecute, is, well ....

The real reason the Senate voted so overwhelmingly is because they couldn't muster votes for defeat. Some Senatoersa may have changed votes top avoid political smears in campaigns. The struggle has moved to the Conference Committee, and who is on the Committee? John Conyers, right? And he is asking for a lot more info of the wiretapping.

Conyers to White House: We Need to Know More about Wiretapping
By Paul Kiel - February 12, 2008, 3:55PM - http://tpmmuckraker.talkingpointsmemo.com/2008/02/conyers_to_white_house_we_need.php

Signaling the fight ahead when lawmakers get together to sort out the differences between the Senate and House surveillance bills, House Judiciary Committee Chairman John Conyers (D-MI) wrote White House counsel Fred Fielding today to deliver two messages: 1) from what he's seen of the documents relating to the administration's warrantless wiretapping program, there's no reason to grant the telecoms retroactive immunity (he prefers the term "amnesty"), and 2) Congress needs to know more before it can be expected to consider granting that amnesty.

The administration suddenly gave Conyers, along with a limited number of members of his committee and the full House intelligence committee, access to documents relating to the program late last month. It was obviously part of the administration's drive to secure immunity for the telecoms. But Conyers says that hasn't worked for him: ........

Politicos are treating this FISA thing like an elaborate political trap, Rs wanting to escape from Bush's felonies and make Dems look bad. But, the House will return a bill without amnesty, and Bush will be in a trap.

[buzzard]

20. I am listening to this being debated in the House now on cspan2.n/t

[Oilwellian]

21. Right...

money does trump all in America. :eyes: