Countdown: Maddow & Turley on FISA

Yesterday - "The Fourth Amendment is going to be eviscerated tomorrow....There is not an ounce of principle, not an ounce of public interest in this legislation....what we will lose tomorrow is something very precious; it's going to be part of the Fourth Amendment and that is beyond measure."

Watch it here:



Transcript.

MADDOW: Now, I‘m not privy to, nor do I ever want to be privy to, the wildest dreams of George W. Bush. But I‘m still willing to bet that three years ago, when we learned he was spying on Americans illegally, I‘m betting that his wildest dreams did not include the prospect that Congress, a Democratic-led Congress would help him cover up his crimes.

Today, in our fourth story on the COUNTDOWN: That is exactly what the U.S. Senate is poised to do tomorrow. In the Senate today, Democrats put forward three amendments to the FISA bill, a bill that would not only succumb to Mr. Bush‘s desire for greater legalized wiretapping, it would also block civil lawsuits against the telecoms, perhaps the best chance we will ever have to find out the extend of our own government‘s spying, illegal spying on us.

The bill would give telecoms immunity for any illegal wiretapping they did for the Bush administration, as long as that illegal wiretapping was authorized by the Bush administration. It‘s like letting a get-away car driver off the hook because the bank robber told him that robbing banks was legal.

Today, a handful of Democrats pointed out how the bill gives the one-fingered salute to the rule of law.

(BEGIN VIDEO CLIP)

SEN. PAT LEAHY, (D) VERMONT: I‘m not out to get the telephone companies. I just want us to know who it was in the administration that said, “Go break the law.” The American people ought to know who in the White House said, “Go break the law.” Who it was that made the decision that somehow this president stands above the law.

SEN. RUSS FEINGOLD, (D) WISCONSIN: And on top of all this, we‘re considering granting immunity when roughly 70 members of the Senate, still have not been briefed on the president‘s wiretapping program. The vast majority of this body still does not even know what we‘re being asked to grant immunity for.

(END VIDEO CLIP)

MADDOW: Despite claiming the bill‘s wiretapping powers are essential to the nation‘s safety, President Bush yesterday threatened to veto the bill if Feingold and Leahy succeed in removing immunity for the telecoms.

At the recommendation of Attorney General Michael Mukasey and others, Mr. Bush even said he will veto the bill if it includes a provision that would merely delay immunity and freeze the telecom lawsuits until after Congress had the opportunity to learn what actions by the telecoms and the government they would be immunizing.

The vote on the bill, complete with immunity, is set for tomorrow. Most observers say that Leahy, Feingold and other Democratic holdouts don‘t have a chance. Let‘s bring in Jonathan Turley, professor of constitutional law at George Washington University.

Professor Turley, thanks for your time tonight.

JONATHAN TURLEY, PROF. OF CONSTITUTIONAL LAW: Hi, Rachel.

MADDOW: First, refresh us on the perils of this immunity issue. What do you think of the arguments for granting these companies retroactive immunity?

TURLEY: Well, the arguments, unfortunately, are all but too clear. You know, there was a recent judgment just a few days ago in the Al Harriman (ph) case, where the federal judge said, “Obviously, the president committed an illegal act.” That illegal act is defined as a felony, a crime under federal law.

So, what the Democrats are doing here with the White House is they‘re trying to conceal a crime that is hiding in plain view, that everyone can see it. And so, the argument for it is quite sill simple, nobody wants to have a confrontation over the fact that the president committed a felony, not once, but at least 30 times. That‘s a very inconvenient fact right now in Washington.

MADDOW: Jonathan, one option for this bill could have been to do something very small and very simple—just making it clear that the government doesn‘t have to get a warrant for foreign-to-foreign communications that happen to pass through the U.S. technologically. That would fix the technological problems and update FISA when they say it needs updating.

But this bill, instead of taking a small scale approach like that, it takes a very large scale approach and expands the president‘s powers to wiretap us, to wiretap Americans without a warrant. At least that‘s how I understand it. Do I have that right?

TURLEY: Well, you have it right. I think that the founders would have found this incomprehensible. The expanse of power to the point of including what is now defined as a federal crime. And not only that, but the Democrats have learned well from Bush.

Because the telecoms are losing in court, because the administration is losing in court, they‘re just going to change the rules, so that these public interest organizations that have brought these cases will all lose by a vote to fiat by the Democrats. It‘s otherworldly.

MADDOW: Senator Obama says he does not like this bill, but he says he‘s supporting it as a compromise. Is this a compromise? Is that the right term for it? Is he right?

TURLEY: Yes. I got to tell you, I am completely astonished by Senator Obama‘s position and obviously disappointed. You know, all of these senators need to respect us enough, not to call it a compromise. It‘s a cave-in.

I mean, if it was a compromise, why aren‘t civil libertarians supporting it? Because we don‘t like to receive a good deal? Civil libertarians are opposed to this.

And, you know what‘s terrible is like one of those stories where someone is assaulted on a street and a hundred witnesses do nothing. And in this case, the Fourth Amendment is going to be eviscerated tomorrow. And 100 people are going to watch it happen because it‘s just not their problem.

And, you know, the only reason it didn‘t happen today was it was delayed for a funeral. That‘s how much these people put into the Fourth Amendment.

But you talk about expanding the president‘s power, it‘s coming out of the marrow of the Fourth Amendment. It‘s coming out of the bone. And it‘s going to hurt. And it‘s being done for political convenience. There‘s not an ounce of principle, not an ounce of public interest in this legislation.

So, at least show us respect of not calling it a compromise.

MADDOW: One last question for you. The man in whose chair I am sitting, as well as John Dean have put forth the idea that Senator Obama should pledge to criminally investigate the telecoms and the administration, even if the companies get civil immunity in this bill when it passes tomorrow. Could that happen?

TURLEY: It could happen, but I doubt it will happen. And the fact is that the fix is in.

Tomorrow night, there‘s going to be a lot of celebrating among telecom lobbyists that have just poured money into this campaign. And they‘re going to have a great victory, but it‘s a Pyrrhic victory for the rest of us. And what we will lose tomorrow is something very precious. It‘s going to be part of the Fourth Amendment and that is beyond measure.

MADDOW: It‘s just gut wrenching, honestly. It‘s gut wrenching.

Jonathan Turley of George Washington University, thank you.

TURLEY: Thanks, Rachel.