Telco immunity: Exhale!

There’s less here than meets the eye. Obama still opposes telco immunity: though he will vote for the package containing it if that’s what’s on the table, he will also vote to strip that provision from the bill. The point of immunity from the BushCo perspective is to prevent the unveiling of its lawlessness in the discovery process; but President Obama could simply order an internal investigation.

When even Tom Edsall starts being taken in by the conventional wisdom, it’s time to call the meeting to order.

Barack Obama said last year that he opposed immunity from civil suit for the telcos that collaborated with GWB’s illegal spying on Americans. That’s still his position.

For reasons not clear to me, the House Democrats caved to Republican pressure and passed a bill that (1) extends the authorization for national security communications interception; (2) brings it back under the control of the courts; and (3) grants immunity. So Obama doesn’t get to vote for or against immunity alone; he has to vote Aye or No on the whole package. Given the importance of the authority and the value of bringing it under legal control, Obama has decided to vote for, rather than against, the whole thing, though he will still vote for cloture on the Reid Amendment to strip out the immunity provision.

Note that the Democrats had proposed last year to substitute the Federal government for the telcos as the defendant in any civil suit. So the question at issue is not whether they have to pay; in either case, they won’t. The question is whether the lawsuits, and the discovery process, can go forward. BushCo is terrified of what that discovery process would produce.

But note that if Obama becomes President, he has no reason either to block internal investigation within the Executive Branch or to use the claim of “executive privilege” to shut down Congressional investigation. So the goal of revealing the extent of the Bush/telco lawlessness is not defeated by the civil-immunity provision.

Note also that the authority in the bill expires in 2012.

Obama’s vote is politically wise (not giving McCain an attack line about Obama’s not wanting to spy on foreign terrorists) and substantively harmless. But the right wing is devoted to creating an image of Obama as a flip-flopper, and for their own reasons parts of the Netroots are willing to play along.

I’m glad to see that the Obama campaign is allowing the debate to occur on the Obama website. And I’m glad lots of people are really, really outraged about unconstitutional spying, and about amnesty for lawbreaking. But this is not a life-or-death issue. All of the damage done by the passage of the bill will be undone by the election of Barack Obama as President.

Footnote If you think that Obama is “tacking toward the center,” ask yourself why he came out publicly against the California anti-gay-marriage initiative. Not only is this the opposite of McCain (who has announced support for the California one and made a TV spot for the even worse Arizona initiative, which banned not only gay marriage but any extension of spousal rights to other than opposite-sex couple, it’s the opposite of the position John Kerry took four years ago. (Also encouraging: the McCain campaign is not going to make this a central issue, the way Rove and Dobson did for Bush four years ago.)

If this is “centrism,” let’s have some more of it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: