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Arbor Hill—Is Three Times a Charm?

By David S. Udell – 04/22/08

It's unusual for any court to issue three versions of one opinion, but in Arbor Hill Concerned Citizens Neighborhood Ass'n, No. 06-0086 (2d Cir. Apr. 10, 2008), a civil rights case involving an award of attorneys fees, the U.S. Court of Appeals for the Second Circuit is at three, and counting.   One might ask "why?"

The Court got into difficulty with its first decision in July 2007.  It took the discouraging step of declaring that a judge could reduce an award of civil rights attorneys fees if a winning client's lawyer originally took the case in order to advance a "reputational" or "societal" goal.  According to the Court of Appeals, a judge's task should be to determine whether "a thrifty hypothetical client" would have been able to get a lawyer to take a civil rights case for less than the usual rate.  If the conclusion is yes, then the judge could reduce the fee award.

But the court's reasoning was unpersuasive to many. 

For one thing, a central premise of the laws that provide for attorneys fees awards in civil rights cases is that there aren't enough lawyers willing to take these cases without compensation at the market rate payable to attorneys in conventional matters.  Civil rights fees laws are designed to create a financial incentive sufficient to ensure that laws will be enforced and rights vindicated.  A rationale that destroys this financial incentive, on the theory that nonfinancial motivations are enough to enable an imaginary client to secure a lawyer, destroys the guiding purpose of these fees provisions, and eliminates their protection for civil rights. 

Moreover, since lawyers outside of the civil rights community take cases for all kinds of reasons—including for "the money," or for the reputational value that accompanies the representation of certain high profile commercial clients—it hardly makes sense to penalize civil rights lawyers for pursuing the noble cause of enforcing the rule of law, or claiming the prestige that comes with doing good.

And how could such a rule ever work?  Will American courts start quizzing lawyers about their inner thoughts?  Hopefully not—our society generally still rejects big brother-ish mind probing that is this blatant.  Nor could such inquiries be easily carried out, if only because lawyers and their firms commonly have multiple, and often contradictory, reasons for taking cases. 

And what about that concept of the "thrifty hypothetical client" who can be deemed, in hindsight, able to obtain bargain rates from lawyers motivated by reputational and societal goals.  Does that occur?  Do these clients see the altruism and ambition in their lawyers minds?  That would be making a large assumption.

If this weren't enough of a mess, the Arbor Hill decision was also notable for having omitted to mention and to distinguish certain key precedents—past decisions, presumably still good law, that had rejected the idea of discounting fee awards for these reasons.

Since in recent years, the opportunities for people to vindicate their civil rights have been limited by a Supreme Court that has made it ever more difficult to claim attorneys fees, Arbor Hill was an alarming development.

With attorneys at Jenner and Block, and with Hofstra Law Professor and civil rights attorney, Leon Friedman, the Brennan Center urged the Circuit Court, in an amicus brief, to fix the Circuit's civil rights fees jurisprudence by granting a request for rehearing.  We also supported a request for the entire Second Circuit to re-decide the case en banc.  And, we brought together in the amicus brief a coalition of 29 public interest groups anxious for the court to issue a new decision.

The Court acted, but in the most modest of ways.  It denied the request for rehearing, but amended its opinion with a new footnote, explaining that it had never meant to change the law on civil rights attorneys fees:  "Our decision today in no way suggests that attorneys from nonprofit organizations or attorneys with private law firms engaged in pro bono are excluded from the usual approach to determining attorneys fees."  But the court left the rest of its opinion unchanged, and the civil rights community was left to speculate about the opinion's import and effect.  

Months passed, with the court's confusing second opinion unchanged, and in place.  But then, on April 11, 2008 the court issued a third version of its opinion.  This time, the court enlarged the same footnote, and quoted one of its previously omitted precedents for the proposition that:  "[N]or is the award necessarily limited because the attorney has agreed to undertake the case for a reduced fee compared to the customary market rate." 

Of course, this language, still tentative, hardly puts the problem to rest, and the original petition for rehearing by the entire Circuit Court, en banc, is still pending before the court—so perhaps yet another opinion, a fourth, is on the way.  But the newest footnote does take a significant step toward normalizing the Circuit's civil rights fees jurisprudence. 

Can we conclude that civil rights lawyers may avoid discounts of fee awards based on inquiries into their inner motivations in taking cases?   In the wake of the three Arbor Hill decisions, that's still anything but clear, but the court has given us reason to hope so.

Tags: Justice, Civil Justice, Attorneys' Fee Awards

Checks & Balances Pop Quiz

By Mike Webb – 04/21/08

Welcome to the first-ever Brennan Center pop quiz.  Since each week brings more depressing news of torture, executive privilege, government spying, etc., we thought we'd share this test.  If you've read the Brennan Center's "12 Steps To Restore Checks and Balances"—which offers remedies for an out-of-control executive—then you're virtually assured of an A+. 

As most of you know, the first step toward ending an out-of-control executive is public awareness. So give this quiz to a friend and see if they're doing their job.  Are you?

Question 1 - Last week, ABC News reported on the "Principals Committee" meetings in which White House officials decided which intero..... (oh heck, let's just call it what it is)...torture techniques could be used.  Who were the members of the committee?

• A)    Dick Cheney
• B)    Donald Rumsfeld
• C)    John Ashcroft
• D)    Condoleeza Rice
• E)    All of the above

For extra credit, tell us which step of the 12 Steps plan would remedy this kind of situation?

Question 2 - According to the New York Times,  the Office of Legal Counsel issued  memos that wrongly claim that the President's "wartime powers largely exempted interrogators from laws banning harsh treatment"?  Who wrote the memos?

• A)    William J. Brennan, Jr.
• B)     Dahlia Lithwick
• C)    John Yoo
• D)    "Jack" McCoy
• E)     All of the above

Question 3 - Earlier this month, the Associated Press noted, "President Bush's refusal to let two confidants provide information to Congress about fired federal prosecutors represents the most expansive view of executive privilege since Watergate."  Who are the two confidants claiming executive privilege?

• A)    Harriet Miers
• B)     John Mitchell
• C)    Joshua Bolten
• D)    Linda Tripp
• E)     All of the above

Question 4 - A recent op-ed in the Los Angeles Times argues that we need to do more to protect Americans' right to habeas corpus.  However, the U.S. government disagrees and would deny habeas protection to which group of people?

• A)    American citizens
• B)     Americans detained abroad and subject to death and torture
• C)    Foreign nationals who have not been charged with a crime
• D)    An MA candidate in computer science at Bradley University in Peoria, IL
• E)     All of the above

Question 5 - The New York Times reported on the existence of CIA and D.O.D. "harsh" interrogation tapes that show detainees being tortured.  Nonetheless, which current and former U.S. officials insisted "the US does not torture?"

• A)    George W. Bush
• B)     Dick Cheney
• C)    Condoleeza Rice
• D)    George Tenet
• E)     All of the above

Question 6 - The Washington Post reported on an analysis of President Bush's use of signing statements.  Which laws has he bypassed with signing statements?

• A)    Postal regulations that require the government to get a warrant before opening a citizen's mail
• B)    Whistle-blower laws that provide job protection for federal workers who alert Congress to government wrongdoing
• C)    Laws that stop the military from using information that isn't "lawfully collected."
• D)    Laws that require the President to tell Congress when the executive branch decides not to follow U.S. laws
• E)     Congress' authority to limit abusive interrogation techniques
• F)     All of the above

And the answers are:

1)      E - all of the above.  Step 4 of our "12 Steps...." plan calls on Congress to "make it clear: no more torture, no more torture lite."

2)      C - John Yoo.  Step 11 would reform the Office of Legal Counsel by insulating it from improper White House influence and requiring maximum transparency for OLC legal opinions.

3)      A & C - Harriet Miers and Joshua Bolten.  Step 7 urges Congress to regulate the use of executive privilege, particularly in situations that may involve wrong-doing  within the executive branch.

4)      E - all of the above.  Sigh.  Step 5 demands the restoration of habeas corpus and would restore the federal courts traditional authority to hear challenges to unlawful detentions.

5)      E - all of the above.  Oooops. In addition to "no torture," Step 9 would have Congress strengthen and review the reporting requirements concerning national security and intelligence activities.  Somehow, Jon Stewart found a way to make this funny.  

6)      G - all of the above.  Step 2 calls on the presidential candidates to renounce the use of signing statements to circumvent the law.

How'd you score?

*Special thanks to Susan Lehman and Patrick Wyllie for their assistance with this.

Tags: Justice, Liberty & National Security, Checks & Balances

Convictions: More Hypocrisy at Guantanamo

By Jonathan Hafetz – 04/15/08

Cross-posted from Slate 

Even as criticism of Guantánamo mounts, Guantánamo's underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as "enemy combatants," al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health.

Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantánamo: Bates suggested that al-Ghizzawi's claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits "cruel and unusual punishment." That requires a prisoner to establish that government officials were "deliberately indifferent" to his "serious medical needs"-in other words, that the officials "knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner's health or safety." Negligence does not suffice. This heightened standard is justified because convicted prisoners are being punished for crimes and cannot expect the same level of care as those living in the world outside. But that justification falls apart at Guantánamo, where hundreds of detainees, like al-Ghizzawi, have been jailed for years without even being charged with any wrongdoing, let alone convicted of any offense.

Bates' opinion ignores the underlying injustice that pervades al-Ghizzawi's case and Guantánamo generally: The United States has imprisoned him for more than five years without charge or a fair hearing. Worse, after the Defense Department's status review tribunal initially found al-Ghizzawi was not an "enemy combatant," the Defense Department ordered a "do-over." (Where, lo and behold, the tribunal found al-Ghizzawi an "enemy combatant.") So, if, al-Ghizzawi is distrustful of Guantánamo's medical staff, as Bates noted, he has good reason: He knows the status review tribunals are a sham and the results rigged.  

Bates treated al-Ghizzawi like any other prisoner in any American jail who has been afforded his right to a trial under the U.S. Constitution. What Bates ignored, and what others too often forget, is that Guantánamo detainees have never had their day in court.

Hafetz: "More Hypocrisy at Guantanamo" (PDF) 

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

Convictions: John Yoo’s Tour de Force

By Jonathan Hafetz – 04/07/08

Cross-posted from Slate

John Yoo's recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo's memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo's ideas through the Military Commissions Act of 2006.

The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo's War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions' legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo's earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.

Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo's discredited assertion that the Bill of Rights does not apply to the president's conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt....

> Read entire Slate piece here. 

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

State Secrets in the Sunlight

By Aziz Huq – 03/26/08

Cross-posted from The Hill Blog

March 26, 2008

In February and March this year, two bills on an obscure federal-court rule of evidence were introduced in the House and the Senate. This arcane corner of federal procedural law-the "state secrets" privilege-has far-reaching consequences. It is a cornerstone on which the "legacy" of the Bush Administration is now being built.

The "state secrets" privilege is used by the government to ask courts to exclude evidence that might disclose sensitive information about national security matters, and it impinges on the heart of the Constitution's system of separated powers: the relationship between the executive branch and the courts. From the early Stuart era, the Founders of the Constitution drew inspiration from English judges who had stood up to arbitrary or tyrannical uses of executive power.

This core idea of the judiciary as a check on executive authority, however, has waned in the glare of late twentieth-century security panics. In signal cases during the 1970s on wiretapping and executive privilege, the Court has left open inchoate "national security" exceptions to constitutional protections. Entering the post-9/11 era, therefore, the solidity of constitutional protections against executive predations on national security grounds remained uncertain.

After 9/11, there has been a public perception of judicial assertiveness thanks to a string of Supreme Court cases in 2004 and 2006 repudiating executive power claims.

But the Supreme Court only takes a fraction of the cases that arise in the lower courts. And the story of national security cases in the lower federal courts is in sharp contrast to results in the marquee cases in the High Court. Generally, lower courts have been more hostile to challenges to executive power than the Supreme Court-especially when it comes to "state secrets."

In a string of important cases concerning immigration detention, extraordinary rendition and warrantless wiretapping, the lower federal courts have rejected challenges to different national security policies that trench deeply on executive powers.

In each of these cases, the courts have declined to allow plaintiffs even entrance to the courtroom, on the ground that a "state secret" (or some synonym), was at stake. And in each of these cases, the courts have in essence taken the government's word that no litigation is feasible and closed the court-house door wholesale, rather than allowing litigation to proceed while carefully sifting specific pieces of evidence to guard against improper disclosures.

Particularly perverse is the denial of a forum to journalists and scholars who are likely victims of NSA surveillance. After the Sixth Circuit's judgment, these plaintiffs are in a double-bind. They cannot show they have been harmed by the NSA because they have no evidence that they have been spied on. But because any such evidence is a "state secret," they are denied any judicial opportunity to gather it.

Hence, judicial acceptance of the government's claim that "state secrets" are at issue, and that these secrets mean a plaintiff cannot be allowed even into the courthouse have a substantial impact on oversight and accountability.

The "state secrets" privilege does not merely entail that those harmed by reckless or foolish security policy are deprived of a day in court. When a plaintiff cannot air evidence in his own custody of government wrongdoing in court, the public also loses a constitutionally mandated avenue for testing their government's claims to be acting lawfully and in line with the nation's best interests. One of the Constitution's two devices for systemic executive accountability-the other being congressional oversight-expires.

Perversely, this pushes people inside and outside government to rely instead on informal mechanisms of oversight-that is, whistle-blowing and leaking to the press. By repudiating structured means for challenging wrongdoing, that is, the executive subtly communicates to those inside government who come across malfeasance that the only option for redress is exposure by hook or crook.

Ironically, therefore, the refusal to allow judicial review pushes us toward an unregulated and ad hoc system of oversight through leaks and whistleblowers, where the chance that truly harmful disclosures might be made is perhaps higher. (This is merely one of many instances in which self-serving government policies on security can have a perverse consequence).

Further, the "state secrets" privilege shores up the Bush Administration's legacy on national security. Most obviously, in the short run, it guards against embarrassing disclosures that might mar its final year (although it is hard to see how this is in the national interest).

In the medium term, it disables the public from making any real assessment of whether the reputational harms from our national security policy-which some think almost irreparable-are worth the candle.

And in the long term, the "state secrets" privilege makes it more likely that whatever errors the Administration has fallen into in responding to the post-9/11 terrorist threat will not be corrected-but entrenched beyond this election.

The new legislation regulating "state secrets" is no panacea. But it does significantly discourage the kind of threshold dismissals that occurred in recent cases. Certainly, it does not guarantee that judges will be sufficiently skeptical of executive branch claims. At minimum, though, it reminds and directs judges toward the fulfillment of the role that the Constitution assigns to them-a co-equal component of the federal government to guard against the foibles and errors of its more powerful sibling branches.

Aziz Huq: "State Secrets in the Sunlight" (pdf) 

Tags: Justice, Liberty & National Security, Checks & Balances

Last Night’s Biggest Loser? Madison.

By Andrew Stengel – 02/27/08

Last night's Democratic debate covered health care and the war in Iraq and jobs and the economy. In other words, the NBC News moderators asked mostly the same questions as, well, the 19 previous debates.

As is customary, talking heads and the print media proclaimed who won and lost. Opinions varied, but nobody named last night's real loser: James Madison, the father of our Constitution and champion of checks and balances.

The issue of presidential power, which is an unlikely answer to pollsters' endless queries as to what is the most important issue in this election is actually quite ubiquitous.  Warrantless surveillance. The Foreign Intelligence Surveillance Act (currently stalled in the House). Retroactive immunity for telecomm companies. Justice Department investigations into torture. Destruction of evidence of torture. Presidential signing statements that flout the intent of Congress. Indefinite detention. Trials for terror suspects under the Detainee Treatment Act. Extraordinary rendition.

Connecting these dots illustrates a remarkable expansion of power in the executive branch over the past eight years that runs afoul of the Constitution and James Madison's intent. Yet, the issue has not arisen—even once—in any of the 40 debates. (The Boston Globe's Charlie Savage suggested a series of topical questions on the New York Times op-ed page on the eve of the debate.)

The administration's theory of presidential power surfaced long before G.W. Bush took office: in a 1987 congressional minority report on the Iran-Contra scandal. As articulated by then Congressman Dick Cheney, and highlighted by the Brennan Center's Aziz Huq in 12 Steps to Restore Checks and Balances, the report provided the foundation for the current administration's theory of monarchial executive power, which claims that the president can act like a king and override—or ignore—Congress.  

Since none of the moderators in any of the Presidential debates have raised questions about our system of checks and balances and how we might best restore Constitutional order, we're writing to each of the campaigns and to ask them to answer the question printed below. We'll post responses we receive.  

In recent years and months, we've learned about warrantless surveillance, signing statements that circumvent Congressional intent, indefinite detention of US citizens, expanded claims of executive privilege, secret memos from the Office of Legal Counsel that justified torture, and much more.  Many people—including former members of Republican and Democratic administrations—see these actions as an attack by the executive branch on constitutional checks and balances, Congress and the courts. Do you believe that the presidency has gained too much power? If so, as president, what specific steps would you take to correct the imbalance?

Brennan Center's Senior Fellow Eric Lane notes that, upon swearing in, the president places his—or her— hand on the Bible and recites the Oath of Office, committing to: support and defend the Constitution of the United States.

We deserve to know which George the next president will resemble—Washington, or the King III.

Tags: Justice, Liberty & National Security, Checks & Balances

Congress Buying FISA

By Emily Berman – 02/14/08

If you watch Congress closely, you might have noticed that they've been buying a lot of beachfront property in New Mexico over the last few years.

America doesn't torture, President Bush emphatically declared in 2005.  Except for those three people that we subjected to waterboarding. 

The 9/11 Commission was given all the information about the treatment of detainees that they requested.  Except those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.

We're not eliding our constitutional obligations to the detainees in Guantanamo.  Except that we have been denying them the long-established right to habeas corpus, the right to see evidence offered against them, the right to present evidence of their own to exonerate themselves. 

We're not monitoring domestic communications without a warrant in violation of long-standing law.  Except for the five years between September 11th and the time the program was exposed by the New York Times.

In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice.  And yet it continues to take the bait-hook, line, & sinker-either by taking no action at all or by enacting laws that simply codify the Administration's flawed policies.

The latest in this long line of legislative travesties is the recently-approved Senate version of a bill to amend the Foreign Intelligence Surveillance Act (or FISA).  The debate over the measure was long, hard-fought, and characteristically full of outright misinformation.  Here are some examples:

• (1)   "If Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect.  The Protect America Act, which eviscerated some of FISA's civil liberties protections, expires Saturday.  FISA, which has served America's intelligence community well for over 30 years, remains on the books.
• (2)   "If telecommunications companies that cooperated with the administration's warrantless wiretapping program are not extended retroactive immunity for any violations of the law they committed, they will not cooperate with intelligence operations in the future." False. Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they!  It is good public policy to discourage telecoms from cooperating with illegal surveillance. 
• (3)   "Requiring the intelligence community to get authorization for surveillance activity from the Foreign Intelligence Surveillance Court (FISC) will impede government efforts to stop terrorists."

Unsubstantiated.  From the time it was established in 1979 until 2006, the FISC rejected exactly 5 applications from the executive.  There's no reason to think that it would not continue to approve valid surveillance requests if it is permitted to retain a role in the approval process.

Instead of recognizing these arguments for what they are-the politics of fear enlisted to further an agenda of unprecedented government secrecy and unaccountability-68 Senators have once again placed their trust in the administration by voting in favor of the bill.  They are trusting that the surveillance targets, which need not be approved by any independent judicial voice, are appropriate and are not likely to be Americans.  They are trusting that the information gleaned from such sweeping surveillance power is used properly.  They are trusting that the communications of Americans "inadvertently" captured in the course of surveillance operations are not retained or used improperly.

By trusting rather than verifying, they are abdicating their responsibility to protect America from excessive executive power.  By not standing up to this imperial presidency, they are saying that fearmongering works and that Congress is becoming irrelevant.

Showing a bit more savvy and resolve than the Senate, the House has thus far refused to fall prey to these same tactics and will let the Protect America Act expire on Saturday.  One can only hope that the House will continue to listen to the voices of those Americans who have grown tired of having their rights and the rights of their neighbors trampled by this administration.

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

A Victory, But Not For Us

By Maggie Barron – 02/13/08

"White House Victory." The words have a surprising ring these days given how little capital the administration has left to spend. But these are exactly the words used to describe yesterday's Senate vote to reauthorize FISA. Rather than rein in the executive branch's expanding surveillance powers, the Senate rejected measures that would have protected civil liberties, and chose to grant immunity to telecom companies that had provided the government with data, perhaps illegally. More disturbing still, this vote was not even particularly contentious; it passed by a wide, 68 to 29, margin. What happened?

Sen. Chris Dodd (D-CT), an opponent of broad surveillance powers, said "Unfortunately, those who are advocating this notion that you have to give up liberties to be more secure are apparently prevailing."

Is it true that Senators are still too scared to stand up to the national security machine for fear that they will be branded as soft-on-terror? Yes, there has been some definite bullying going on. In his State of the Union address, President Bush said that if Congress didn't act immediately to reauthorize FISA, "our ability to track terrorist threats would be weakened and our citizens will be in greater danger. Congress must ensure the flow of vital intelligence is not disrupted." The message is clear: question the government's use of power and you put Americans in danger.  We've been hearing it for six years. And the message seems not to have lost its power over elected officials.

Still, I think there are other forces at play. This is a unique moment in which the politics of security and the politics of special interests intersect. Some political issues, like national security, are thought to be immune from the reach of special interests. But the moment FISA became not just an issue of domestic spying but also of telecom immunity, the legislation seemed clouded, like the majority of other issues before Congress,  under a shadow of special interest money.

Take Sen. Jay Rockefeller (D-WV), the chairman of the Senate intelligence committee, whose support of the current FISA legislation was critical to its passage. He said that the legislation was "the right way to go, in terms of the security of the nation." But it seems it was also the "right way to go" in terms of pleasing his contributors. According to the Center for Responsive Politics, he is one of the top Congressional recipient of telecom money. Other Senators who supported immunity were also on the list of top recipients, such as Mary Landrieu (D-LA).

The telecoms have good reason to want immunity AT&T and other telecoms face 40 lawsuits. And the government worries that without immunity, the telecoms, having learned that the executive sometimes asks for cooperation with legally questionable operations, won't cooperate with future spying efforts.  

To be fair, Chris Dodd, who introduced the amendment rejecting immunity, also received money from telecoms, about $10,000 last year. So there is no direct correlation between a vote on FISA and the money received from telecoms. But wouldn't it be better if we could be sure that legislative decisions were made on the merits of the cases at hand, and not to please campaign contributors?

If we are going to restore checks and balances, Congress must be able to challenge the assumption that civil liberties and national security are in necessary tension. Unfortunately, when special interest money comes in to play, it's hard to know for sure whose interests these Senators are thinking about.

Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism