Telecom Immunity: Update

by hilzoy

From the NYT:

"Reflecting the deep divisions within Congress over granting legal immunity to telephone companies for cooperating with the Bush administration’s program of wiretapping without warrants, the Senate Judiciary Committee approved a new domestic surveillance law on Thursday that sidestepped the issue.

By a 10 to 9 vote, the committee approved an overhaul of the Foreign Intelligence Surveillance Act that dropped a key provision for immunity for telecommunications companies that another committee had already approved. The Senate leadership will have to decide how to deal with the immunity question on the Senate floor.

On Thursday night, the House voted 227 to 189, generally along party lines, to approve its own version of the FISA bill, which also does not include immunity.

But the administration has made clear that President Bush will veto any bill that does not include what it considers necessary tools for government eavesdropping, including the retroactive immunity for phone carriers that took part in the National Security Agency’s wiretapping program after the Sept. 11 attacks. (...)

After lobbying by the telecommunications industry and the White House, the Senate Select Committee on Intelligence agreed to the legal protection last month. Under a complicated legislative process, the Intelligence Committee’s bill had to be considered by the Judiciary Committee before it could go to the floor of the Senate for a vote.

Because the two committees could not agree, Senator Harry Reid of Nevada, the majority leader, will determine which proposals will be considered by the full Senate, said a spokeswoman for the Judiciary Committee.

“The full Senate will yet need to resolve the immunity issue,” Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, said in a statement after the committee vote."

As best I can tell, this means that a lot turns on what Harry Reid decides. If he brings a bill without telecom immunity to the Senate floor, then any amendment adding it can be filibustered, and would need 60 votes to pass. If he brings a bill with telecom immunity, the opposite would be true.

This, from Greg Sargent, is heartening, though hardly conclusive:

"As some people have been speculating today, aides to Senate Majority Leader Harry Reid have confirmed to me that the version of the FISA bill that was just reported out of the Judiciary Committee does not -- repeat, does not -- contain retroactive immunity for the telecom companies.

And a source close to Reid says that this is "most likely" the version that the Majority Leader will file a motion to proceed on."

As I wrote earlier, I can't see any reason why telecoms should be given retroactive immunity for breaking the law. This would set a horrible precedent: when the President asks powerful companies to violate the law, they can accede without having to pay any price for doing so. The fact that the House has voted a bill without immunity, and the Senate is closer to considering one, is a big step forward for the rule of law.

Comments

[Jaden]

It would be wonderful to feel anything but sure that Sen. Reid will fold on this and give Bush exactly what he's demanding.

[Jaden]

Why is Typepad now just showing my first name? It posted correctly with Jaden "Otter" Holt once or twice, and now just puts in Jaden, but I'm filling out the name blank the same way. Did it suddenly change quotation mark handling?

[joel hanes]

If Senators Reid and Feinstein actually allow a bill without retroactive telecom immunity to pass the Senate, I will personally send a pony to Holden.

As Feckless Leader once attempted to remark (with his customary degree of success),
"Fool me once, shame on you.
Fool me twice, shame on me."

Sen. Feinstein has been fooling her constitutents over and over and over again for lo these many years. Shame on us for re-electing her.

[Gary Farber]

"Why is Typepad now just showing my first name?"

I find Typepad here constantly messing with me, including frequently preventing me from posting at all. The solution is usually to delete the Obsidian Wings and/or Typepad cookies, and with luck that will reset your ability to enter what you want.

[Jaden]

Thank you, Gary! I will give it a try, and not worry too much.

[Incertus (Brian)]

I've given Reid the benefit of the doubt more often than I care to remember, but this really is a dealbreaker. If he sends up the bill with the immunity in it, then next time there's an election for Majority Leader, he's got to go.

[Gary Farber]

Since Chris Dodd isn't going to be President, he may be available for Majority Leader.

Assuming he's not busy as a Veep candidate.

Bernie Sanders would be the most interesting choice.

[john miller]

"But the administration has made clear that President Bush will veto any bill that does not include what it considers necessary tools for government eavesdropping, including the retroactive immunity for phone carriers that took part in the National Security Agency’s wiretapping program after the Sept. 11 attacks."

Would somebody please explain to me how retroactive immunity is a tool required for future surveillance?

Seriously, I have tried to come up with some kind of rationalization and can't.

I can devise some rationalizations for the immunity part, none of which have any validity for me, but this argument, if it is what the administration is really saying, is ridiculous.

[OCSteve]

john miller: My best guess is that without immunity lawsuits could go forward and possibly be won. Enough of those and it becomes obvious that the program was illegal then, therefore should still be illegal now. Or something like that…

[Brett Bellmore]

Under the "enrolled bill" doctrine, couldn't he just let each House pass it's own version, and lie about them both having passed the one he prefers? Granted, he'd need his counterpart in the House to sign onto the lie, but that might not be too difficult.

[john miller]

OCSteve, I realize that by letting the lawsuits go on, it opens that administration to having it pointed out that they and the telecoms broke the law in the past. However, even asking for the immunity is a de facto admission of guilt.

What I am asking is why the immunity is necessary for future surveillance if the other aspects of the law are sufficient to handle the weaknesses of the FISA for today's world.

And if they are worried about "State secrets", screw them. They can testify and provide information in a closed hearing where it is not released to the public or, "heaven forbid", our civilization threatening enemies.

The immunity can then be treated separately.

[cleek]

What I am asking is why the immunity is necessary for future surveillance if the other aspects of the law are sufficient to handle the weaknesses of the FISA for today's world.

i'd guess it's because they're doing things, or may be asked to do things, that are violations of even the expanded laws.

or, it could be more disingenuous Bush BS; he's trying to justify and provide cover for his political favors.

[Porcupine_Pal]

If they need it, the President has the power to pardon lawbreakers. But that might mean the public would come to know the extent of the intrusions now taking place.

"The One Percent Doctrine" by Ron Siskind has many details of the extent to which the government is closing in on us.

But look at it the other way: at least it helped the capture of Osama bin Laden. Where would we have been without these 'tools'?

[Jay C]

@john miller:
I think another reason why the Administration is making such a big deal about the telecom-retroactive-immunity issue is that it strikes right to heart of the Bush Administration's core principle: i.e. Richard Nixon's old formulation that "if the President does it, it isn't illegal" - especially if it can be wrapped in the "national security" mantle.

The Administration, to date, has basically ignored the law, hoping to avoid any negative fallout by either:

a) stonewalling and bleating "state secrets!!"
b) pushing challenges back and hoping to "beat the clock" by January, 2009
c) retroactively "immunize" challenges, as in the present case - and claim the "immunity" applies to them, as well*

*As if anyone in the Bush 43 Admin believes they have to respect the law in the first place!

[Fledermaus]

or, it could be more disingenuous Bush BS; he's trying to justify and provide cover for his political favors.

This is my pick. The most annoying thing about Bush is he makes these transparently false arguments for his policies. Take Libby's commutation. He said that he did it becuase the sentence imposed was so much higher thta what probation recommended. Probation recommended 15 months but Bush reduced it to zero. Not a singe person asked him, that I can remember, why zero days was justified instead of 15 months.

[Porcupine_Pal]

The immunity being sought is quite broad.

It covers much more than phone companies.(S.2248) Sec 801 covers telecommunications and electronic communications services (my banking, securities, and credit card data) and 'any other communications service provider who has access to wire or electronic communications'..

And, it runs from September 11, 2001 till January 17, 2007 (when the earlier legislation became effective)..

[John in Nashville]

The Bush administration most likely is scared sh!tless of the pending suits against telecom providers proceeding to the discovery stage, which could reveal wrongdoing by current or former members of the administration.

[Bill]

In a regulated business, there is a strange relationship that develops between a small businessman and his government regulator. A successful businessman makes a lot of money compared to the regulator. But the regulator holds all the power in the relationship. The small businessman is nine times out of ten backed by the Constitution in cases of disagreement, but usually concedes the point because of the costs of contesting his point, both in legal dollars and a poisoned future relationship with the regulator. The regulator is usually a bitter person and jealous of the small businessman’s material things.

The government always grows, both in cost and scope. Hilzoy’s concern about creeping government power is real.

But Islam changes things. Look at world history.

Islam will not take over America, they don’t have the brain power or the organizational skills. The total system is not appealing to the Western mind and will find few converts outside of our prison systems.

But Islam empowers government. The Islamists aren’t sitting in Pakistani jails today, the lawyers are. Jailed by a dictator. Don’t be arrogant to the point of thinking that that only happens to brown people.

I support immunity for the telecoms. I support a Constitutional Amendment defining religion. I support the rule of law.

http://www.usc.edu/dept/MSA/

[Fledermaus]

I support immunity for the telecoms . . . I support the rule of law.

I'm afraid those two propositions are mutually exclusive.

[Gromit]

Bill, I'm starting to suspect you could shoehorn an incoherent anti-Islam rant into a discussion of municipal zoning regulations. Ironically, you are correct; Islam has clearly wrought profound changes on something here: namely, your perception of just what is lurking in every corner and every shadow.

[jull]

Hilzoy,

Keep fighting the good fight. It make sense you would use your time to work to punish anyone would be helpful in the war on terror. Kudos, but truly I hope your side loses the war.

[john miller]

Once I told hilzoy not to bother with people like jull, that in fact we need to be reminded that they exist. I take all that back.

[KCinDC]

Jull, likewise I hope your side loses the war to turn our country into a police state.

[Free Lunch]

Bill, the companies that rolled over when asked to commit a crime are not small businesses. AT&T and Verizon are some of the largest businesses in the country and are quite capable of getting top-notch legal advice. They have also shown that they will cheerfully go to court over perceived slights from regulators. In short, your argument in defense of the companies now seeking statutory exculpation is bogus.

Islam is no better or worse than any other religion. It also has nothing to do with the question at hand.

I doubt that you understand what 'the rule of law means'. You seem to be opposed to it.

[Gary Farber]

"The regulator is usually a bitter person and jealous of the small businessman’s material things."

Cite?

How do you know this for a fact, rather than a fantasy?

[JDH]

There seems to be something hypocritical about not granting immunity to the telecoms. It is clear to me that they knowingly violated the law when they helped the Bush Administration eavesdrop on Americans. However, it is also clear that the Bush Administration violated the same law. But, Pelosi has taken impeachment off the table - effectively giving the administration immunity. While, I've never have liked the 'just following orders' defense - it seems wrong to hold the telecoms responsible for their actions and not hold the administration equally accountable.

[Gary Farber]

"There seems to be something hypocritical about not granting immunity to the telecoms."

Passive voice. If it feels that way to you, no one can do anything about your emotional state regarding the question. It's also not particularly relevant to anyone not among your friends and family.

But it's not "the telecoms" who are under discussion.

It's only those who violated the law. Qwest, for instance, didn't.

Meanwhile, what may or may not happen in the future regarding governmental actions remains unknown. The idea that the normal legal and judicial procedures should be completely circumvented, with an utterly unprecedented whitewash of criminality, simply because there has not yet been a proper investigation into the government's actions would itself be an unprecedented overturning of our laws, and of our judicial system.

Why would we want to do that? Why would we want to not let justice be done as best as we can see to it?

And, at worst, if there's a miscarriage of justice by the courts, then the president or Congress could take action.