Scottish Haggis’ Latest “Compromise”

Since the Senate Judiciary voted out a FISA Amendment that didn’t include telecom immunity, Arlen "Scottish Haggis" Specter and some Democratic Senators have been working on a compromise. And voila! your wishy-washy compromise (Specter’s statement; the bill):

The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S.

Though to be fair to Scottish Haggis, there’s one bit I’m quite fond of:

In order for substitution to apply, the electronic communications service provider must have received a written request from the Attorney General or the head of an element of the intelligence community indicating that the activity was authorized by the President and determined to be lawful. If the provider assisted the Government beyond what was requested in writing, this legislation will leave the provider on the hook for any surplus assistance.

In other words, if AT&T wiretapped me before 9/11, or if it wiretapped me based on the say so of Alberto Gonzales during the period following the March 10 hospital confrontation, then I still get to sue AT&T.

But here’s the killer:

nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege

Given that much of BushCo’s motivation to give the telecoms immunity relates to BushCo’s own exposure for illegally wiretapping Americans, and given that the telecom lawsuits were so important because they provided an angle around State Secrets, this pretty much sinks the lawsuits anyway.

As I understand it, this bill will go before SJC on Thursday.

  1. Leen says:

    EW you are moving faster than the speed of light. Want to mention that the Presidential debate at NPR is just about to begin. Sent NPR the question about the elephant on the stage “How will you deal with the Israeli Palestinian conflict any differently than previous presidents” and “why do you think this question has not been asked at any of the Republican or Democrats debates?”

    Starts at 2…..d=16843353

  2. bmaz says:

    Yeah. Exactly. The problem here is that, in the first place, what the hell does Big Haggis mean by “substitutes”? His original musing on this concept was terminally vague because he was comingling the concepts of indemnification and substitution; and this is little better. If it really means indemnification (which would not be my reading just from the language, but is arguably consistent with his prior iterations), that is one thing; but if this truly means legal substitution, where the government literally steps into the shoes of the telcos and becomes the sole party defendant, that is another far different thing. If it is the latter, which would be the standard interpretation of the language as reported here, then it already increases “the ability of the Government to assert the States Secret privilege” to some extent because it is now being invoked and relied on by the only party defendant. The plaintiffs in the actions lose the second party defendant to play off of the government. If there is to be a “compromise”, it should consist of nothing more than simple indemnification (which i still maintain they were going to be entitled to any way on the classes of applications described by Spectre and noted by EW. As this appears to be intended, I do not like at all.

  3. emptywheel says:


    I didn’t look at the actual bill (note, there are two links above, not just one). So you might be able to discover what kind of legal haggis Specter has pulled.


    That’s a good question. I wonder if Haggis knows that the NSA authorized this after DOJ refused to? Sure seems like we ought to know that before they pass a bill.

  4. JohnLopresti says:

    The state secrets disclaimer seems like Addington sourced language, simply writing a ‘just-saying’ anchor as a proximate shield for fretting telco corporate defense counsel. It is a fairly new doctrine, though one whose elaboration and accretions remain contentious. Maybe the retroactive telco exemption law the legislature is trying to write here could include a much more ample section on this doctrine instead of a vague mention as currently phrased. I need to re-read some of the fine baseline research Diggs Taylor did on this last year. As for the substitution of ‘language’ naming the government as actor, I would wonder if this would extend to a new requirement to rewrite the 1996 dereg law to make US incumbents more akin service providers in semi-socialized countries in which some industries are 51% guided by government; think some telco entities in France.

  5. Leen says:

    So this program was operating without the DOJ’s approval? I thought this program had the DOJ’s approval and that hospital scene took place when the Bush administration was seeking re-approval?

    Is this where you get into the “which” program question?

  6. Loo Hoo. says:

    Why would we taxpayers be responsible to pay for the government having spied upon us? If the members of the administration who committed the crime and members of congress who vote in favor of immunity want to pay for it, that’s fine with me.

    Asking us to pay for it is like asking an abused spouse to pay for the batterer’s massage therapy.

    • BooRadley says:

      Good one.

      Or, “Please let me pay for the wrist you sprained hitting me in the face with the lug wrench.”

  7. WilliamOckham says:

    Hmm… I don’t know about this. Question for the lawyers. Does page 8 (lines 1-12) say what I think it says?

    It appears that if you establish standing against a telecom and the government pulls this substitution, you automagically get standing as an aggrieved person under FISA section 110.

    Sounds like that could potentially be dangerous for the government.

  8. bmaz says:

    Loo & Boo – Sorry guys. We are the taxpayers that elected these bozos and stood by while they did this in our collective name. We are responsible for them. Again, sorry, but maybe it will wake up the sleeping morons in this country and get them to pay better attention.

    WO – Possibly. On the other hand, by converting all claims to only these, you likely wipe out a lot of ability for the plaintiff’s attorneys to attack the case from several different tangents available under the various standard tort claim principals that would otherwise be available in addition to the restricted claim left under the specific statutory bases under the bill. Really understanding the implications on a plaintiff’s ability to fully litigate would take a lot more contemplation than there is time for here and now, but I will hazard a pretty safe guess that this actually restricts a plaintiff significantly. If they are not going to bounce everything, they have to leave some avenue of liability; this one undoubtedly gives them the best avenues for pleading state secrets and otherwise limiting discovery and damages.

  9. Leen says:

    I like that John Edwards is reminding us that there are Republicans with integrity. (story at FDL about John Edwards) Hell there are tons of Republicans who are deeply concerned about the direction that his administration has taken this country. Former Secretary of the Treasury Paul O’Neil, Kevin Phillips, Bruce Fein, Pat Buchanan, Hagel, Lugar voted againt the Kyl LIebermann amendment etc etc.

  10. selise says:

    As I understand it, this bill will go before SJC on Thursday.

    yes, it’s now listed on the schedule (as the first item on the agenda) for thursday’s sjc business meeting at 10am in dirksen-226.

  11. JodiDog says:

    It seems strange to me all the paranoid people around here who think that they are evil enough for the government to tap their phones.

    I for one am not that evil, and so I am not worried.

    Will everyone who thinks they are evil enough to have their phones tapped, or who think they are evil enough that if their phones are tapped at random they will get in trouble, PLEASE hold up their hands.

    ((Note this is the original Jodi from TNH, not the fake Jodi over here.))

    • RonD says:

      Only evil people get their phones tapped? The whole crux of the issue is having our phones tapped without warrants, when we’re not evil or criminal, and without the oversight of applicable law. Paranoia? It’s not that they will set up a police state, it’s that they have set up a police state, and if they have not chosen to exercise its full power, it’s that the Administration can if it wishes. What was once paranoia is now reality.
      Hi, Marcy!

  12. Leen says:

    EW sure hope one of the bloggers calls Clinton out on her claim at the NPR Presidential debates that she has been pushing for diplomacy with Iran during the last two years. The facts just do not support her claims. That is unless you call sanctions and threatening using the military and
    claiming that Iran has a nuclear weapons program DIPLOMACY.…..tnG=Search…..tnG=Search

  13. Mr.Cbl says:

    Does the change from Telcoms to The U.S. mean that the court cases would change to We the People v We the People? Just asking.

  14. leinie says:

    WTF? Who said you have to be evil? The whole point here is that they tap whoever they hell they want, for whatever reason. No warrant means no proving anybody is “evil” or anything else, they just listen.

    This idea of “if you have nothing to hide, what difference does it make if they look” is completely contrary to the Bill of Rights, and our Constitutional history.

    The 4th amendment says they must have cause. It doesn’t say if I’m not evil I shouldn’t worry.


  15. perris says:

    I don’t want ANY compromise

    if they got a warrant they are already exempt from law suit, if they didn’t get a warrant they are party to stealing my information and I want NO compromise what so ever

  16. emptywheel says:

    Have to confess I’ve got mixed feelings about what to do with the house troll. There’s the first issue of deciding which Jodi we want to keep (I’ve seen just two over here so far, so we’d be choosing between them). The original Jodi is deliberately obtuse at times, reminds of what conservatives with family members serving in Iraq might think about, and actually put me and phred onto some Beamish in Boston (though I haven’t checked whether that was real-Jodi or imposter-Jodi; I guess I need to do that). Though she is disruptive for those who don’t realize she’s our house troll. And if we lost her, what would freep do?

    Imposter-Jodi is nowhere near as consistent a personality though she’s a little more pleasant to deal with. I’ll probably just ban imposter-Jodi for being an imposter. (Though at the moment I’m fascinated by having a real and an imposter house troll.)

    I don’t know–what do you all think?

    • Neil says:

      I don’t know–what do you all think?

      It’s sounds like you’d like to keep at least one house troll. I admire your tolerance, you and others, and your dedication to keeping this an open forum. I do not admire the effect of Jodi troll, whose contributions rarely rise to the level that can be considered countervailing, not one bit.

      Maybe you’re right on the money – you usually are.

      Monday Jodi likened me to a dog and herself to a tick. I had thought Jodi was just obtuse but not intentionally obtrusive. I changed my mind. I think her relationship to the blog is parasitic. She is not only aware of her affect but rather enjoys being disruptive and contraire. Your observation about the effect of Jodi troll on newcomers, as opposed regulars who have developed informed restraint, is a good point too. Wouldn’t it great if we could attract a conservative voice that adds value to the conversation rather than lowers the level?

  17. RonD says:

    EW, I must confess I didn’t realize I was responding to a troll. While I have long followed your work at FDL, this is the first time I’ve been here, and I thus did not know. Not really competent to have an opinion on how to deal with the trolls. Sorry for feeding..I love your work, and am a huge fan.

  18. leinie says:

    EW, you could have a thread where they battle to prove whose the “Original House Troll” and ban the loser. An analysis of the use of bold could help determine the winner. The Beamish could be weighted in the final decision.

    OT, did you see the interview with Sheldon Whitehouse over at TPM where he talks about supporting Leahy in contempt? Any thoughts?

  19. nomolos says:

    Nice on the new house EW.

    The discussion about immunity or not is very very important but I do have one question. Is the issue of immunity going to hold up our getting to the basic “truths” of the illegal spying, who gave authority etc. If the immunity issue prevents us getting to the ultimate “prize” then, well, I am torn.

  20. earlofhuntingdon says:

    Let the original FISA amendments expire. “Substitution” works no justice. The corporate and governmental crimes are distinct; each entity should be liable for its own wrongdoing based on individual facts and circumstances.

    In some cases, corporations acted correctly or in reliance on credible assurances from the government, in which case, they are already immune from liability, but not suit. Those who cooperated in the face of assurances that were facially flawed, or in the face of none at all, in order to speed through their mega-mergers and associated mega-bonuses (think AT&T, Cingular, Sprint, Nextel), or to procure huge, new government contracts, deserve no immunity from suit or liability.

    The government deserves immunity from neither. So, unless Haggis is also willing to force passage and signature of new laws waiving defenses to suit and liabiity, such as exeucutive privilege and state secrets, I suggest Haggis leave it alone and let the grown ups in the next administration (adn Congress) fix another of Junior’s messes.

    And please, Democrats, stop with the own goals on this one. A few donations to an election many are bound to win hands down ain’t worth alienating Miss Marcy and Miss Jane. Just think how much more willing to buy your vote tomorrow the telcos (and all the other corporations) will be if you threaten to rain down justice on them today.

  21. bmaz says:

    RonD – It was me with the gruff statement; sorry about that. I am in the middle of a longish comment and I got annoyed at troll related comments that keep popping up. I have seen you before at FDL and know you meant no offense; nor, I am sure, did lienie, who I believe is also new. Sorry about that….

    nomolos – Yikes! It IS the immunity issue that would prevent us from getting to the truth; if immunity is granted, even to a lesser extent under the “Specter Compromise”, we will never get at the real truth and extent of what was done. So, the immunity issue is of utmost critical importance.

  22. JohnJ says:

    How about giving the telcoms the immunity deal they give us serfs: We won’t prosecute if you tell us EVERYTHING you did even questionable and hand over all the communications with the Big Dick Government. If we find you held anything back or lied, or commit any other crimes, your immunity is withdrawn.

  23. phred says:

    WilliamO, I haven’t read through the links, so this is just an impression, but I suspect EW and bmaz are correct that this compromise does not bode well for plaintiffs to challenge unwarranted wiretapping in court. I think the explicit reference to state secrets tips their hand. As I understand it, the executive branch can hide behind state secrets much more easily than AT&T can. So, even though you get standing, once the government steps into AT&T’s shoes, they can claim state secrects, and poof case closed. So once again, we appear to have a “compromise” which is no compromise at all. Harry Reid is again doing W’s bidding.

    On the subject of the troll, I would hate to ban her/them. Freepatriot would be left without a useful hobby. Besides, I owe her one for the Beamish. So, I’m in the pro-troll camp… for now. So, Jodi, do what you can to work on your reading comprehension — from your comment above, it hasn’t improved much.

  24. earlofhuntingdon says:

    The “immunity” issue is important in itself, but it hides the more important problem that granting it would shut down most suits (one version of this legislation expressly mandated that), leaving only the currently ineffectual Congressional inquiries. The next administration might investigate its predecessor, but there’s no guarantee that it would or do so well, no guarantee about how broad in scope that inquiry might be or whether any of its conclusions or “fixes” would be made public.

    Bush and Cheney’s records make clear that neither has the emotional or intellectual resources to negotiate. (To persuade even a GOP Congress to do their bidding, they didn’t negotiate; they simply opened the treasury doors to Congress and the White House doors to their lobbyist backers.)

    In the unlikely event that Bush agrees to substitution, we should expect a signing statement that guts its effect, and intense arguments over a variety of defenses to suit and/or liability, such as standing and state secrets. Which makes the fight, even if nominally about immunity, all the more important.

  25. bmaz says:

    I only saw one link before, but now I see two; but they are indeed the specific statement of Haggis on the bill and the bill itself. I have printed both out and reviewed them. I see several concerns in the language contained in the statement. I am going to pull quotes out of the statement because I don’t seem to be able to cut and paste off the pdf file.

    The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S.

    Two things of interest here. The inclusive dates of 9/11/01 and 1/17/07 don’t address situations, as EW noted, occurring prior to 9/11 and we now know they were indeed underway with their illegal snooping before then. I guess the end date of 1/17/07 has some basis in previous legislative action, but I am surprised they put such a limiting end date in at all. Of more interest to me, are the words “designed to detect or prevent a terrorist attack against the U.S.” What of their portions of the program that are not realistically aimed at terrorists? Funny you should ask. They clearly intend to put about every snooping effort they run under this designation, and language later in the bill leaves this determination up to the Attorney General, not a neutral court or jury that should be making such a determination.

    the Government will be substituted if the Attorney General certifies that the electronic communications service provider did only what the Government asked. Once substitution occurs, Federal and State courts are directed to dismiss the providers from the action.

    Here is part of what I discussed immediately above as to the sole designator being the Attorney General. I see no provision for challenging such a designation, even if it appears prima facially fraudulent; apparently everyone just has to accept the AG’s word, in spite of his conflicted interest status, as the word of god. And this self interested certification need not contain any details or facts that would be necessary to evaluate it. Also, the certification is submitted to the court ex-parte and is then sealed; again, no ability to challenge by an aggrieved plaintiff. This is bogus and serves only to secrete facts deleterious to the people secreting them. There should be some provision allowing a knowing and intelligent challenge to these classifications by the AG. More importantly, the last part of this quote confirms exactly what I feared in the comment at 10:54 above. It is a direct substitution of the government into the shoes of the telcos and complete dismissal with prejudice for the telcos, as opposed to simple indemnification. Even if subsequent evidence is adduced showing clear liability on the part of the telcos that should have been allowed to proceed (i.e. the AG certification turned out to be a lie or unknowingly wrong), all ability to collect off of the telcos for that activity is lost forever. It also, as i stated above, removes the ability to play one proper defendant off the other and leaves as the party defendant only the government with their cheshire grins and state secret claim forms.

    the Government will not have sovereign immunity in the 40 or so cases currently pending in the California Multi-District Litigation.

    Interesting. Are there no other cases extant? Does this mean there is sovereign immunity for any other cases? Even if the government had already affirmatively waived it previously by statute such as FISA? You would not think so, but if I was a government lawyer, I would sure argue that. The bill itself actually frames it better, i.e. in terms of “covered civil actions” in the bill; which, of course, are only those actions currently pending, so not just limited to the Calif. Multidistrict consolidated cases. I believe there are other cases, framed slightly differently that the Calif. cases that are in play though; and there are certainly cases from other jurisdictions still active on appeal. Also, I think there is still a window of statute left in which appropriate plaintiffs could file a complaint. What of those plaintiffs?

    the legislation is intended to ensure that the Government can only assert those defenses the electronic communications companies may assert under current law. On the other hand, nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege. The legislation is carefully crafted so as not to disturb plaintiffs’ standing to bring their claims against the Government.

    Jeebus. You have got to be kidding me. We already went over the enhanced ability on the part of the government to assert state secrets that, notwithstanding the language in the bill, effectively results from the elimination of the other party defendant. But this bill most certainly does expand the defenses available in that the defenses that were previously separate, some available to the government and some available to the telco defendants, are now consolidated and all available to a single self serving entity. More later; fingers are tired.

  26. alank says:

    I should think the case of JetBlue and TSA would provide basis for proceeding against this concerted effort to protect violators. There must also be something in Black’s Law Dictionary about writing laws to make illegal acts legal.

    The Electronic Privacy group and other privacy activists have argued for years that CAPPS II is being developed under strict secrecy and they believe that plans disclosed so far appear to violate personal privacy.

    The organization said it plans to file a complaint about the Northwest incident this week with the Department of Transportation, which oversees the airline industry’s compliance with “safe harbor” principles of guarding private consumer information. The group said it also plans to file suit against NASA in U.S. District Court in San Jose, Calif., this week, because the organization said the agency did not disclose enough information in the FOIA request.

    The Electronic Privacy group seeks to know more about the NASA program, including whether the agency shared the information with other parties and whether any other airlines were involved.

    “There doesn’t seem to be a classic space exploration endeavor here,” said Barry Steinhardt, director of the American Civil Liberties Union’s technology and liberty program.

    The TSA has said that it is developing CAPPS II as a means to better identify people who might be terrorists. But the program will also be used by law enforcement officials to identify and question suspected violent criminals.

    Steinhardt said the Northwest incident, coupled with the JetBlue data sharing, provides Americans with one more reason to be wary about CAPPS II. “What this makes plain is that we cannot believe the assurances we’ve received that this passenger data will only be used for limited purposes,” he said. “Inevitably, it will leak out for other uses.”

    • phred says:

      alank — thanks for the link, however the article you cite dates from 2004. Have you seen anything more recently on the status of any pending lawsuits on this matter? I’m curious whether the government managed to get the airline cases tossed on the basis of state secrets or whether they are still proceeding.

      I see why you think this case may be relevant to the telco issue, but the difference here is that Congress is actively working to rewrite the law to make the illegal participation of telcos retroactively legal, and in the process keep the extent of the whole system shrouded in secrecy, so it’s not clear to me how the airline case helps here.

  27. WilliamOckham says:


    I think the 1/17/07 is the date that AGAG announced that they had ‘brought the TSP under FISA’.

    • bmaz says:

      Right. But who in the world believes they really did? I am surprised, pleasantly I think, that the end date is set; but perplexed.

  28. emptywheel says:

    I’m with bmaz. There must be a reason for the end date–perhaps to bring more reluctant Senators along. It’s also possible the Administration just reverted to old FISA on January 17, so they believe tehre’s not need for immunity. Or they figure it falls back into FISA, in any case.

    • phred says:

      EW, I’m not following you here. I thought the whole problem was that the “old” FISA did not cover the current array of telecommunications which is why a fix was needed. So if somehow things are magically compliant after 1-17-07, that can only be because they stopped doing whatever had gotten them crosswise of the law prior to that. How could they possibly have continued their illegal conduct after that date under the old provisions? What am I missing?

    • bmaz says:

      The quotes I worked off of were, for ease of copying and pasting and brevity as I stated, from Specter’s Bill Introduction Statement that you also linked to. The bill is, as you would expect, more specific; but the language discussed was pretty much right out of the actual bill. I will try to go through and see if there are additional significant points in the bill only that should be noted. I certainly don’t claim to have caught everything, nor necessarily have called it correctly, so i urge anyone interested to dissect it also. The more the merrier.

  29. WilliamOckham says:


    The explanation is that Specter believes the Administration got everything squared away on 1/17/07. We know they didn’t. We know the problem precedes 9/11/2001. We know that the Administration isn’t about to risk giving somebody standing under FISA. Ergo, I think we can expect the Administration to announce that Bush will veto this bill.


    I don’t have to lay out the whole dastardly scheme, but the short version is this: The Bush Administration has admitted violating the FISA law and Bush is personally liable for millions (actually probably billions, I’ll have to do the math) in civil penalties and a substantial prison sentence. His stooges in the DOJ thought they had come up with a way to legalize the criminal behavior in Jan ‘07, but apparently at least one of the FISA judges figured out they’d been played and laid down a tougher standard. So, the Bushies threatened the Congress with a terrorist attack on the Capitol building if they didn’t play ball in August. Hence the vile PAA. Now, they want to make this all permanent and make sure that no one will ever be able to prove they are thugs and criminals.

    • phred says:

      WO, I guess I’m just a bit slow today, so is what you are saying that the PAA was retroactive to the January 17th date? I get the part about the administration wanting a permanent PAA plus with telco immunity added. What I don’t get is why January and not August? How did things become legal over that interval unless they actually changed what they were doing?

      • bmaz says:

        Phred, I can’t speak for WO, but I think what was being related is things did NOT become legal for that interval; but Specter is working off of the statement by the Administration (actually Bush himself I think) that as of that date the Administration had cleaned up their act and were completely legal and in compliance. But, anybody who has delved into these weeds, knows that just isn’t correct. I must be missing something, because, although I can see where they pulled the date from I think; to put it in the legislation is a poke in the Bush Administration gut with an electric cattle prod. There is no way they were in compliance and they know that. They won’t admit it, but they know it. I’ll make a healthy wager that end date (probably ANY end date) is a non starter for the Administration.

        • MadDog says:


          If I’m remembering correctly, as part of that EFF FOIA document dump had a number of statements from Mikey McConnell that for a period of time from the FISC rulings to prior to the passage of the PAA, the IC “lost” some ability to collect stuff.

          • phred says:

            So that’s the quandary I see, either they suspended some activities (in which case the January date makes sense for Spectre to make this all look like a short term misunderstanding due to an out-dated law and we are left with that nice warm feeling of swell bipartisan compromise), or they didn’t suspend anything, in which case BushCo is still on the hook for those months. Either way though bmaz, I agree with you that this will head straight to a veto given the starting date. Or will W be sufficiently freaked out by the PAA sunset provision that he waves his magical signing statement pen at the legislation to make those inconvenient dates go away? It is nice to be king.

  30. pdaly says:

    If the government is able to substitute itself for the telcos in a lawsuit, isn’t this similar to the government stating it has taken over a private industry? Is this anything analogous to the unconstitutional attempt by President Truman in 1955 to take over US Steel ( Youngstown Sheet & Tube Co. v. Sawyer)?

  31. bmaz says:

    WO – I think that is about right. The veto bit too. FYI, cboldt and I were discussing the level of damages possible some time back, and were somewhere around or over a billion on just one of the litigations.

    pdaly – No, they are only assuming liability defense, not prospective operational control of the enterprise. Having on party defendant assume the complete defense of another, while not necessarily common, does occur sometimes in civil litigation.

  32. emptywheel says:

    If the Democrats were smarter, they’d load up the bills that are poison solely to the Administration (I think no basket warrants is another). Then Bush would have to veto what he called, publicly, a perfectly good bill, and we’re back to FISA.

    Unfortunately, I don’t think the Dems are that smart. Someday, Whitehouse will be (he’s got to be part of this compromise, too). But he’s not seasoned enough yet to best Mitch McConnell.

  33. earlofhuntingdon says:

    This is a legislative dog’s breakfast. At random, immunity should not be for some hypothetical, prior, “good citizenship” cooperation with a presumably legitimate government request. As the Comey incident suggests, whatever the various programs were or are, they were whoppingly out of synch with established law: Comey, Goldsmith, Ashcroft, et al, are all staunchly conservative. Immunity, if granted, should be in exchange for full cooperation and as many other things as, oh, Dennis Kucinich can think of.

    “Immunity” doesn’t answer the question about who can sue whom, the mechanics for substitution, whether it’s substitution or indemnity, etc. That would have to be worked out in this legislation (leaving it to administration rule makers would obviously not be wise). And there’s no time or interest in doing so.

    Suing a mega-corporation in a civil suit can be daunting; ask a young Ralph Nader who battled GM. But the federal government has even bigger sticks to use against private plaintiffs. Judges and juries are not as prone to find liability (or even standing to sue) when its Joe Blow against Uncle Sam. On top of which, the more disconnect there is between the players in the court room and those who actually did the deeds, the more links in the chain there are and the harder it is to prove one’s case.

    If disclosure, stopping the wrongful behavior, compensating those wronged, and taking preventive to avoid future wrongs are the goals one had in mind, immunity would not help obtain them.

    Lastly, that’s an interesting point about liability: if the govt (ie, you and me as taxpayers) assumes “all” liability, presumably that covers liability incurred by private actors, ie, telcos, acting at government request. That broom may, however, also sweep up personal liability of oh, George and Dick, and any ceo’s, general counsels and board members who chose to put their companies in harm’s way, knowing that government assurances were faulty on their face, etc. Nice work if you can get it.

    • Taechan says:

      Regarding covering the private actors–check the bill’s definition Item (4) Electronic Communication Service Provider. We have (A) telecom carrier defined in sect 3 of Communications Act 1934, (B) provider of electronic comm. services defined 18 USC 2510, (C) provider of remote computing services defined 18 USC 2711, (D) any other comm. services provider who has access to wire or electornic comms. either as such transmitted or as such stored, (E) a parent, subsidiary, affiliate, successor, or assignee of entity described in subpara. (A, B, C, or D), or (F) an officer, employee, or agent of an entity described in subparagraph (A),(B),(C),(D) or (E).

  34. alank says:

    Here’s a report on the GAO finding that TSA had violated the law:

    July 28, 2005

    The news that the Transportation Security Administration violated the Privacy Act by collecting data on 250,000 Americans as part of a “study” for its new “Secure Flight” program is the latest in a string of incidents detailing how government agencies are using commercial data brokers to sidestep privacy laws, setting the stage for more problems in the future.

    The Government Accountability Office (GAO) issued a report to Congress stating that “a TSA contractor, acting on behalf of the agency, collected more than 100 million commercial data records containing personal information such as name, date of birth, and telephone number without informing the public.”

    At least one civil lawsuit was dismissed.

  35. pdaly says:

    thanks, bmaz.

    I suppose there is no way to prove the government has operational control of the telecos?

    And I suppose it is not illegal for AT&T to run the government and pay for its legal defense.

    • MadDog says:


      Just my guess here from an the to-ing and fro-ing from the document dump and David Kris articles, but at least one of the things that got “suspended” was collecting “foreign to foreign” stuff that was either transiting the US (phone calls) or resident in the US (email on US-based servers).

  36. bmaz says:

    You guys really think they “suspended” something and that they were really in compliance? Is that you final answer? You sure you don’t want to use your lifeline to call a friend before you answer?

    • phred says:

      Nope, I don’t think they suspended anything. But, the date is supposed to make it look like it, don’t you think? Somehow this “compromise” is supposed to make it look like some kind of “limited” immunity as they try to run this bit of fuckery through the spin cycle. “See, we got dates! This is limited in scope! Feel better? Now run along while we give the telcos everything they paid us to give them… Oh, and wink wink, it just so happens to let a lot of our hardworking well intentioned government officials off the hook for doing their best to protect you.”

      This is a snow job that Reid needs to get him off the hook for rolling over, again. I’m just trying to get a grip on just what exactly this sow’s ear is that they are about to pass off as a silk purse.

  37. bobschacht says:

    Here’s the letter I wrote to my Senators:

    There are several bills to amend FISA currently pending. To put it briefly, the Senate Intelligence Committee bill is the worst, Sen. Arlen Spector’s bill is almost as bad, and the Senate Judiciary Committee meeting is best. But there are likely to be all kinds of amendments proposed and adopted, so please use the following guidelines when considering each bill and amendment:

    * No retrospective immunity! Retrospective immunity is a really bad idea.
    * No prospective immunity either!
    * No basket warrants that allow fishing expeditions and invasion of civil liberties.
    * Please don’t allow “experts” from the Executive branch to substitute for the Courts in oversight. The role of the courts must not be diminished in any way!
    * No “substitution” such as offered in Spector’s bill. His bill includes poison pills that will have undesireable effects.
    * In general, please follow the guidelines proposed by the Congressional Progressive Caucus on FISA.

    * Finally, no bill at all is better than a bad bill, because failure to pass a new bill or amendment merely allows the existing laws to remain in effect.

    I will appreciate your close attention to these matters.

    Bob in HI

  38. Anonymous says:

    Wow, how delicious to have Jodi prove she’s the real Jodi. There’s only one true way of course to prove which troll is the real Jodi or just an impostor. Tie her up, take her to sea and throw her overboard. If she sinks, then she’s the real Jodi. If she floats, she’s an impostor. Reminds of that scene in V for Vendetta.

  39. JodiDog says:


    it is simple enough to see who the real Jodi is. Just look at the email address registered over here for JodiDog, and the email address used for many months (before the last 2 or maybe 3 weeks) over on TNH.

    I think that the false Jodi must have known about your switching over to FDL for they started the major part of their impersonation about 2 weeks before over on TNH and grabbed the Jodi name over here on FDL.

    And if you don’t want to be challenged or your other posters can’t handle differing opinions, then as I said before a long time ago, just put at the top of the page. “Only liberal progressives should post on this blog.”

    Then you can have a perfect litany and harmononious song like chant of agreement that will swell up like some great wave though it will finally be dashed back by the stony cliffs of real America.

    … and I will go quietly and politely, dusting off my hem, as I depart.

    Jodi (the original, now called JodiDog)

  40. JodiDog says:


    I just read all the comments, and saw yours.

    Perhaps you have never heard the expression ~stick to you like a tick to a dog~ I thought it was pretty common, but since you don’t seem to know it, it means “stay very close.”