Kia Franklin

With “Protectors” Like This…

**UPDATED: 1:30 p.m. FRIDAY**
Cross posted from TortDeform.Com

"It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."--James Madison

The significance of this quote, shared by Senator Dodd during hearing statements last fall--can be observed now amidst the newest round of debates over whether telecommunications companies that illegally spied on the American public (by doing things like tracking what blogs we read, reading our emails, listening in on our phone calls, and keeping track of our activity on password protected sites) should be granted retroactive immunity for violating our constitutional right to privacy.

Yesterday, the Senate Judiciary Committee's proposed amendment to the FISA bill, which would have eliminated the option of so-called "liability protection" for telecom law-breakers, was tossed out by a 60-34 vote. Next up was the SSCI bill, which would grant retroactive immunity to telecoms. As Senate considered that bill its supporters--a largely Republican group with a hefty sprinkling of Dems in the mix--made every effort to block any amendments that would have addressed its glaring civil liberties concerns. And on this Monday at 4:30 p.m., the Senate will vote on whether to stop considering amendments to the SSCI bill and just move forward with passing it.

I've ranted about this issue before. But the Administration's apparently increasing gall and contempt for the law notwithstanding, and its undying commitment to shielding corporate friends from the effect of the law aside, let's focus instead on the lie of so-called "liability protection" and what it really means for the public and our civil justice system.

Liability protection. It sounds kind of harmless, like dry political jargon used to describe a reasonable, sensible policy. It protects. It deals with liability. It's liability protection. But who does it protect? And what's liable to happen to the rest of us and our rights as citizens as a result?

Bush, Cheney, and executive administration officials insist that if we don't scurry and pass this bill, and in the form and fashion that Bush wants it, it'll be at our peril. This do-or-die framing of the issue creates a sense of urgency and drama and depicts opponents to retroactive immunity as the bad guys who don't want to protect America.

But this so-called "protection" they say we'll get sure works like quite the opposite for the American public. We're told that spying on us--not just authorized, I-got-a-warrant spying, but plain old blatantly-not-okay-unwarranted spying--is for our protection. Also necessary for our protection is eliminating our right to hold accountable those who illegally spy on us.

They have yet to explain how retroactive immunity as a policy itself will really help protect Americans, while the President threatens to veto any version of FISA that doesn't provide it. The proponents of legalized-illegal spying make red-alert calls to pass FISA now and in the way and shape that they see fit, but hypocritically drag their feet on making any progress in passing the bill by the February 1st expiration date. (Sen. Harry Reid said in the Times:''It appears the president and Republicans want failure. They don't want a bill.")

Conclusion: supporters of retroactive immunity are NOT trying to protect America. They're trying to protect America's favorite corporate big dogs, and the executive branch's unfettered power to wave the wand and say magic words like "executive privilege" and "classified information," etc., in order to get out of any mess they make, regardless of the repercussions for real people. That's what I call off the hook protection.

This is nothing new.

This is yet another twist to the same old corporate cronyism that has infected our civil justice system over the past couple of decades via tort "reform" measures to shut the courthouse door to regular Americans. Eliminating our ability to enforce our constitutional right to privacy in a court of law is tantamount to eliminating that right altogether. Because our civil justice system is where we go to enforce our rights, a move to "protect" corporations from liability for violating our rights, is a move to endanger Americans' access to substantive justice.

Like I said, it's nothing new. We saw it with the Class Action Fairness Act, which made it difficult for wronged individuals with important but small claims against corporations to come together and hold those corporations accountable. We see it with persistent reliance on the Federal Arbitration Act to enforce mandatory binding arbitration, which allows corporations to funnel people out of the public courts and into a private, heavily corporate-biased proceeding for disputes between regular people and big companies. Retroactive immunity, liability protection, is just another bullet point in the tort "reform" agenda to defang our civil justice system. And it sets a scary precedent wherein all sorts of companies facing all sorts of claims will know that the American legal climate is particularly warm to the idea of preserving corporate privilege even to the detriment of the public's constitutional rights.

This is why we need to keep our eyes open on Monday. We need to watch whether our so-called "representatives" take to task and represent our interests (apparently Rockefeller (D-W.Va.) may vote for our interests on Monday, which is, to say the least, surprising). We should take note of whether the Presidential candidates in the Senate hop off the trail for this important vote. And we should listen to what Bush says in his State of the Union speech about our 4th amendment right to privacy.

The attack on the civil justice system takes many forms, and "liability protection" for the telecoms is just one. And with protection like this, who needs endangerment?

Kia Franklin: Author Bio | Other Posts
Posted at 7:14 AM, Jan 25, 2008 in Civil Justice | Civil Rights | Politics
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