The Democratic leadership in the Senate, Republican knuckle-dragging in the same chamber, and the mediocre skills of whoever wrote the final version of the FISA bill, have combined to give Senator Barack Obama a second chance to make a first impression.
And he damned well better take it. ...
Frankly, Senator, this political tight-rope act you’ve tried on FISA the last two weeks, which from the outside seems to have been intended to increase the chances of your election, probably hasn’t helped that chance in the slightest.
There is, fortunately, a possible — a most unexpected — solution.
Your second second chance.
Since the final version of the FISA bill was passed down from on high, John Dean has been reading it, and re-reading it, and cross-referencing it with other relevant law, and thinking.
Something bothered him about it. Or, more correctly, something didn’t bother him about it.
Turns out lawyers at the ACLU have been doing the same thing for the last ten days. John compared notes with them, and will be devoting his column at “Find Law” this week, to this unlikely conclusion:
The Republicans who wrote most of this bill at Mr. Bush’s urging, managed to immunize the telecoms from civil suits.
But not from criminal prosecution. ...
Keep your eye on the wording of the legislation to make sure the Republicans don’t realize its flaws. Then vote for the amendment to strip telecom immunity out of the FISA bill.
Then after that fails, vote for the FISA bill, if that’s your final answer.
Then the minute the president has signed the FISA bill, you announce that you voted for it because it renews FISA and because it permits a bigger prize than just civil suits; that it allows for criminal prosecution of past illegal eavesdropping.
Say, loudly, that your understanding of this bill is such, that if you are elected, your Attorney General will begin a full-scale criminal investigation of the telecom companies who collaborated with President Bush in eavesdropping on Americans.
And mention — oh by the way — that your Attorney General will subpoena such records, notes, e-mail, data, and testimony, from any and all Bush Administration officials, FBI or CIA personnel, or any members of the Executive Branch, who may have as much as breathed in the general direction of these nefarious acts of domestic spying at Mr. Bush’s behest. ...
You’ve already taken the political hit from the Right, for saying you’d seek to strip out, or rescind immunity. You’ve already taken the political hit from the Left, for saying you’d vote for the FISA bill even with the immunity. You’ve paid the political price in advance.
Now buy yourself — and those who have most ardently supported you — something worth more than just class action suits against Verizon.
Explain that you are standing aside on civil immunity, not just for political expediency, but for a greater and more tangible good — the holding to account, of the most-corrupt, the most dangerous, and the most anti-democracy presidential administration in our long history.
Of course, if you disagree with this interpretation — if you think the FISA bill doesn’t have the giant loophole, or if you don’t think you, as president, would be ready to support criminal prosecution of… well, criminals — then your duty is clear.
Vote against the FISA bill, if it still carries that immunity.
The Republicans are going to call you the names any which way, Senator.
They’re going to cry regardless, Senator.
And as the old line goes: give them something to cry about.
Update: via Socratic Gadfly (who is similarly unimpressed), the legal POV from bmaz at emptytwheel is that we are still hosed:
Telcos hire the best, most persistent, and most capable lawyers available. Always. They will not be being represented by some sleepy, understaffed and overworked public defenders; they will have the best criminal defense talent in the world. It will not be necessary; a child could win these proposed Olbermann/Obama master plan prosecutions. So easy that even Alberto Gonzales could carry the day. Bottom line, this is one of the most ridiculous non-starters I have ever heard. If this is the "Master Plan", we are in a world of hurt.