"I have neither the time nor legal background to figure out who's right."
When we last checked in on Joe Klein he and his Time editors were falling all over each other to correct, excuse and explain away the fact that he writes editorials without performing basic research and without understanding the relevant facts. You might think that after that embarrassment he would stick to writing about his area of expertise -- whatever that might be -- but you'd be wrong. What makes Joe Klein such a serious and respected reporter is his ability to compound errors with further errors and to bravely wade once again into issues that mystify him.
Joe Klein once again weighs in on the FISA debate. (It's worth reading the comments at the end -- his readers are on to him) His previous debacle taught him nothing about FISA but it did teach him a neat trick: instead of saying things that are misleading or outright false, he trots out others to do it for him. This way he is merely "reporting" rather than inventing.
Over the past few weeks, I’ve asked Constitutional Law professors from Harvard, Yale and the University of Chicago about the immunity provision. There are differences of opinion—no one is thrilled about immunity, to be sure—but the bottom line is, essentially, that this is a lesser issue diverting attention from the passage of an important law.
Joe Klein talks to some contacts of his and they all agree with Joe Klein. Amazing how that works out.
At the start of his piece Klein rattles off a list of issues that have "broad agreement among most members of Congress." But he never takes the next step in suggesting that Congress go ahead and pass a bill containing those broad agreements. If "no one is thrilled about immunity" Klein could write a piece admonishing Republicans for insisting on it-- but that's not the Klein we know and love. No, our Joe Klein is busy rounding up "experts" as clueless as himself who can join him in uttering a few half-hearted words against telecom amnesty before blindly supporting it.
So how big a deal is the immunity provision? In effect, it is a grandfather clause: it essentially says that telecoms should not be punished for acts that were illegal in the past but now become legal in the FISA reform bill. In other words, it would be like prosecuting a doctor in 1974 for abortions he performed before Roe v. Wade was decided. He had performed abortions when they were illegal, but they were now legal and therefore…what? None of the legal scholars I spoke with were sure how such cases had been handled in the past...[em. added]
His analogy is nonsense but beyond that look at the last line. The entire premise of his piece is that instead of offering his own uninformed opinion he will report on what his experts think -- but they are no more informed than Klein! Klein couldn't be bothered to perform his own research (didn't have the time nor legal background) and neither could his contacts. So now instead of having to listen to one ignorant and lazy pundit we have to listen to a handful. Much better. They argue that telecom amnesty is acceptable while admitting they don't know how it works.
Klein's experts aren't experts on retroactive immunity. Well surely they are experts on the immediate issues surrounding FISA right?
Barron, however, is opposed to lifting immunity for telecoms "because, going forward, you don't want to send the message that anyone has a free pass to act illegally on such a basic Constitutional question, even if they've been asked by the government to do so." Barron acknowledges that there are mitigating circumstances in this case: the country seemed under the threat of imminent attack in the months after 9/11, when these data-mining requests were made, and that such searches will now become legal under the new law. He suggests a compromise. The telecoms should not be granted immunity, but punitive damages should be waived if the cases are litigated.
How wrong are thee? Let me count the ways.
1. The warrantless wiretapping began prior to 9/11. "9/11 changes everything" is annoying enough even when it has some grain of truth, and this claim does not.
2. Klein constantly refer to "data-mining" without explaining what he means or how he knows that data-mining is all that occurred. It's hard to believe he even knows what data-mining is, given that he only speaks about it in shifting generalities.
3. "Such searches will now become legal under the new law" is entirely circular logic. Much of the debate is centered around the question of whether certain surveillance techniques should ever be legal.
4. While arguing that law-breakers should not get a "free pass" the proposed solution is just that: literally a free pass. Some compromise.
Joe Klein's experts are just repeating the same falsities and inane logic Klien himself employs to give his opinions a veneer of respectability.
Professor Cass Sunstein of the University of Chicago agrees that if no immunity is granted to the telecoms, there should be no punitive damages: "Huge damage awards would just be passed on to the consumers in any case." But Sunstein also believes that the importance of immunity has been blown out of proportion: "This is a terrible, mostly symbolic fight. The stakes are far lower than the level of noise suggests. The notion that essential civil liberties are at stake here is just an exaggeration. The important thing is to get the new statute right."
If "the important thing is to get the new statute right" then why are Klein and his allies pushing to pass a bill that includes provisions that "no one is thrilled about"? The argument that huge damages would be passed on to consumers could of course be used in defense of virtually any corporate misdeed.
So far Klein has done well in letting his experts make inane assertions on his behalf, but in true Joe Klein fashion he has to get in on the act:
But the NSA program, if operated under the legal restrictions imposed by an updated FISA law, is a crucial intelligence tool. It has the potential to prevent the next 9/11. (And indeed, it should be remembered that the actual data-mining is done by mid-level, apolitical NSA employees—political appointees of the Bush Administration have absolutely no legal access to the information and there have been, to my knowledge, no specific abuses reported so far.) If, for example, it is found that Bush administration officials were sifting through the NSA data to gain information on their political opponents, then they should tried, convicted and thrown in the clink for as long as possible....But there is no suggestion that they, or the telecoms, have done anything like that.
The Bush Administration and the telecoms in question have already demonstrated a willingness to break the law, and people like Joe Klein argue that they deserve no penalties for those illegalities; the argument that things will be swell if everyone follows the law to the letter is naive at best. Given that they already broke the law without penalty what makes this time different? A pinky-swear?
Klein pretends to speak authoritatively that only "apolitical NSA employees" are privy to data and that surveillance powers have not already been abused. How he knows these things is a mystery, especially given that he continuously gets even basic facts wrong. The reality is that nobody knows to what extent surveillance powers have been abused. The Bush Administration has repeatedly hidden behind state's secrets privledges and executive priviledge to avoid divulging information and telecom immunity would short-circuit the already difficult process of discovery through court proceedings.
Joe Klein has no idea what the administration has done so far; he has no interest in finding out and advocates policies that actively prevent those who are interested from further investigations. He's willing to see and hear no evil and wants to force us to do the same by law.
The entire thing is so disengenuos. The clueless Klein lines up equally clueless experts who all back up his opinion that we have to vote for a bill regardless of content or the terrorists will win. He writes editorial after editorial arguing that Democrats should cave and include nonsense provisions but he'll never argue that Republicans should stop politicizing national security policy and stop insisting on policies that even his own experts pay lip-service to opposing.
In Joe Klein's world it just has to be the fault of Democrats. That's his invented narrative and he's sticking to it. They should just suck it up and vote for bad bills because asking Republicans to vote for good bills is not proper decorum.
Just once I'd like to read a pro-amnesty editorial that didn't include falsehoods and purposely misleading rhetoric. I suspect it will never happen because the case for telecom amnesty is so anemic it's impossible to prop up without a relying on a loose relationship with the truth.
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