HJC Calls Bull on SSCI’s Conclusions

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

The case for blanket retroactive immunity would be stronger if the various carriers had taken consistent actions in response to requests from the Administration. That is not what we found. Without revealing any specific details, we found a variety of actions at various times with differing justifications in response to Administration requests.

No word on whether anyone has contacted Nacchio’s judge–who is having his own Spitzer-like problems–to inform him that Nacchio had a point when he said he may have lost his NSA contracts out of spite.

The letter also repeats a point AT&T made in its letter to Dingell et al–that the activities the telecoms were engaged in were covered under a number of different laws.

If there were one simple, straightforward legal rule that applied to the conduct in question, it could perhaps be argued that it is a straightforward matter for the legislature to assess the lawfulness of the conduct in question. Without revealing any specific details, that is not what we found. It appears that a variety of legal rules and regimes may apply to the conduct of the carriers. We would note that one carrier has publicly stated that there are “numerous defenses and immunities reflected in existing statutory and case law” for companies that cooperate with legally authorized government surveillance requests. [my emphasis]

I was thinking when I read that letter that one thing AT&T was trying to do was describe the scope of the illegal program. I plan to go back and read those legal justifications more closely, but I recall the centrality of laws pertaining to pen registers among them, reinforcing the notion that the telecoms were also data mining. It sure sounds like they crafted together a mix of legal justifications to do what they did.

Most importantly, HJC makes a strong case to reject immunity (while allowing the telecoms to defend themselves–a stance that also responds to the sole reason SSCI felt it had to offer immunity), while calling for an independent committee to look into the illegal wiretapping.

Accordingly, we support a resolution that would, notwithstanding the state secrets doctrine, authorize relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate security protections to carefully safeguard classified information. This solution would ensure that carriers can fully present their arguments that they are immune under current law, while also ensuring that Americans who believe their privacy rights were violated will have the issue considered by the courts based on the applicable facts and law, consistent with our traditional system of government and checks and balances.

Our review has also led us to support two other recommendations. First, there is arguably a gap in liability protections for carriers that complied with lawful surveillance requests covering the time period between the expiration of the Protect America Act and the future enactment of more lasting FISA reform legislation. As Speaker Pelosi and Senate Majority Leader Reid have proposed, legislation to fill that gap is justified and important. This provision is not included in the Senate FISA bill, and shoul dbe included in any final legislative product.

In addition, our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program. We, therefore, recommend the creation of a bipartisan commission to conduct hearings and take other evidence to fully examine that program. Like the 9/11 Commission, it would make findings and recommendations in both classified and unclassified reports and thus inform and educate the American people on this troubling subject.

I like this approach: it undercuts the logic of SSCI’s insistence on immunity, shows a concern for the prospective legal position of the telecoms, while putting something on the table–a bipartisan commission–that we can negotiate with if we ever have to cede on immunity.

Let’s hope it’s not too little too late.

95 replies
  1. FrankProbst says:

    FYI: Rawstory says Bush is giving a speech about this at 9:20 ET, which means it should have started by now.

  2. azportsider says:

    He gave the speech, and it was just the same incoherent and inarticulate bullshit. He took no questions (surprise!).

    • emptywheel says:

      Did he address the HJC approach?

      If the DEms can manage to do messaging even marginally effectively, they ought tobe able to split the Senate from Bush, based on the fact that they’ve resolved the SEnate’s stated issue (state Secrets).

      But I’m not holding my breath.

      • Peterr says:


        It was just his usual talking points: greedy class action trial lawyers are sticking it to patriotic telecoms; the Senate passed a bipartisan bill while the House is playing partisan games; and Everybody be scared!

        And it was only covered on cable — none of the basic networks broke into their morning talk shows to cover it.

        • MarieRoget says:

          Given the brevity of the statement + no questions allowed, the networks are completely justified. Agree it defeated his purpose if it was to rally the morning show watchers. Networks may be hearing from President Petulant’s minions, though, & have to run a tape of it a little later.

          EW, hope your talk @ Claremont McKenna & trip to the ocean went well.

  3. perris says:

    from what I am reading here, they are saying that the telecoms are already immune and nothing further is needed, they can simply claim they were following the law as they interperated that law and we affirm they are immune

    I don’t like that affirmation, I would like the case to be made in each request, not as some kind of summary judgement

    • emptywheel says:

      I don’t think that’s what they’re saying. They’re saying that some of what they did may be legal, some almost certainly is not, but it’s not the role of Congress to make these complex legal determinations.

      Read thewhole letter–I’ve just excerpted bits.

    • rapt says:

      Whether “we affirm they are immune” or not, I thought the real issue here was immunity for Cheneyco, as apparently sneakily written into the Senate bill?

      Could you clarify that for me? It sounds to me like the House is less willing to let exec branch skate on this issue, as discussed earlier at some length.

      • emptywheel says:


        Here’s the deal. The SSCI wanted to give immunity. So they came up with a reason why they had to do so that looked very pro telecom: because the poor little telecoms had been screwed by the Administration invoking state secrets. HJC, by saying, “get rid of state secrets” has just undercut the entire rationale the SSCI offered for this–it gets at the logical fallacy of their position. So if the Dems can message this correctly, at the very least it will force some immunity supporters to admit this is about immunity for BushCo. Add in the bipartisan committee (which I rather suspect is there as a bargaining chit), and they’ve got a way to refuse to allow BUsh and Cheney to get off with breaking the law.

  4. AZ Matt says:

    I wonder if the Senate folks are even bothering to read the House letter. I read through it yesterday at the Gavel. Of course no Repubs signed on cuz they hate America. Jello man must be grinding his teeth.

  5. BayStateLibrul says:

    Pelosi and the House have discovered their voices.
    The Korean’s have a saying “If your only tool is a hammer, all your
    problems will look like nails.”
    The House, thank goodness, is finally pounding back.

  6. SaltinWound says:

    Not sure why you asked who could get together out here so you could ignore the responses. If that’s what I’m looking for, I’ll stick with show business.

    • perris says:

      Is it just me, or is the media pretty much ignoring Bush?

      there’s always a firestorm if they don’t ignore him, the president makes bizarre claims, the press doesn’t challenge those claims and then we rail on the press for abandoning it’s role as the fourth estate

  7. SaltinWound says:

    It was latish but the same day you posted the question. There were also responses after mine. I offered to throw you a f*cking party and feel a bit foolish. I’ll stop now.

  8. Tortoise says:

    It’s good. Give the telecoms the tools they need to properly defend themselves against the evil trial lawyers. How could anyone object to that?

  9. skdadl says:

    A naïve question: where did this whole thing about “evil trial lawyers” get its start? Is it entirely a BushCo routine?

    • FrankProbst says:

      A naïve question: where did this whole thing about “evil trial lawyers” get its start? Is it entirely a BushCo routine?

      Yup. Cheney rolled it out himself, I think.

      • emptywheel says:

        Actually, Cheney was the second person to use it–it had been used at least once before I cited Cheney using it.

        But it seems to be all they’ve got. Because if not for the trial lawyers they have to admit there is a legitimate reason to oppose immunity.

    • JohnJ says:

      It is a long torturous trail, but the “evil trial lawyers” has been a decades long campaign by insurance companies as a justification to raise their rates and generate obscene profits.

      Do you remember $11mil for coffee spilled in the lap? That was “evil trial lawyers” trying to cash in on poor little Micky D. (Find me someone who knows that the judge lowered the amount to something like $600k the next day.)

      I have been watching that thing unfold for over 20 years when my dad first pointed it out to me.

      • bmaz says:

        i know the case very well. Not only did the trial judge reduce the amount (pursuant to a concept known as remittitur), the case was egregious as to McDonalds. They intentionally superheated their coffee, knowing that there would be some injuries but thinking it would be cheaper to pay for those losses and sell more coffee. Kind of like Ford and it’s Pinto gas tanks. My partner is good friends with the McDonalds counsel during the case, even he thought that the conduct was bad, the lady deserved serious damages and that it was a shining example of the fact that the tort trial system works very well. So take that you Republican pukes! By the way, just so people know, this little old lady’s entire vaginal area was seared, consumed with 3rd degree burns and permanently deformed (and normal function and urination permanently impaired) as a result of this. This is actually one of the best cases in the world to demonstrate how well the system works.

        • JohnJ says:

          Thanks bmaz. That is one of my favorite examples of distorted narrative as people STILL bring it up as an example of “out of control trial lawyers and reactionary juries”. I personally found the reduction on page 2 the next day in a little column.

          My next favorite was the guy who fell while trimming his hedge with a Toro lawn mower and sued for millions! I saw that as local news in both the WaPo and St.Pete Times years apart. Small problem….no one has ever found any evidence of the case actually existed. There are a bunch of those rumors out there that obviously came from the insurance industry. Little shrub pushed HARD for tort “reform” down here.

          When I correct people on the story, I always add; if your child was hospitalized by a defective toy, who ya gonna call first?

    • NCDem says:

      “evil trial lawyers” actually goes way back. Think about what the majority of trial lawyers do. They largely have historically represented workers and worker rights. It has been much more prevalent in the South because we have few other means to support workers. Unions are the foe. It started here and has moved into current vocabulary as any legal action that harms the rise of corporations. The Republicans have largely owned this meme.

      • earlofhuntingdon says:

        Precisely. Corporate lawyers who devise my tax-dodging trust funds, who devise my CEO’s multi-tiered compensation package, who calculates how to disclose my companies activities for SEC purposes without revealing what we really do, and the guys who keep me out of jail when I screw up. Hey, they’re OK.

        It’s all them other guys we got ta git. My workers don’t need no union – I take care of ‘em real good. Them lawyers who want to watch me forklifting downer cows into the hamburger bin, I’ll give ‘em a poke with that forklift, too. And the ones that want to count the royalties I pay Uncle George or them Indians, snicker, or want to see how well I shore up my mines or test my drugs? They’re the ones who are bad fer Amerika.

        Except that they don’t often speak like Bubba; more likely, they have an Ivy League diction, a New England nasality or a Wall Street Journal twang.

          • earlofhuntingdon says:

            My suggestion was that, like alcoholics and sexual predators, those who most damage our society aren’t yokels or welfare queens; they’re often dressed in Armani or Gucci (or cowboy boots and oversized hats), and have sheepskins written in Latin. My apologies if I was overly inclusive in casting aspersions. Some of my best friends live in New England, or at least Sudbury and Ludlow.

            • BayStateLibrul says:

              Agreed and I love your descriptive writing…
              The term New England nasality worked it’s magic, can I steal it?

              • earlofhuntingdon says:

                Soitinly. A geek at The NewsHour’s business desk tells me I coined the phrase, “Wall Street Journal twang”. Use with permission. Snark. I consider it a pejorative description of purportedly progressive journalism that, in fact, seeks to promote the titans of corporatefare.

      • skdadl says:

        It’s interesting to me (apart from the intrinsic interest — ie, I’m interested on your behalf) because our neocons don’t take this tack, I don’t think, although I sit to be corrected by Ishmael, who will know better.

        Maybe that’s just because we’re poorer? (Well: we were.) Our courts don’t give enormous awards, but maybe the big cases don’t happen here?

        But I also think there’s a structural difference. If you woke our neo-lib/neo-con prime minister in the middle of the night and asked him “Who do you hate the most?” he would not shout “Evil trial lawyers!” He would shout “Arms-length regulatory bodies!” That’s who he is running into trouble with, one commission after another — it’s actually getting kind of funny some of the time, except that he keeps firing people he shouldn’t really be able to fire or just defunding or destroying review bodies that we need.

        Maybe that has been done already in the U.S. It’s just turning into a regular routine here.

        • Ishmael says:

          Well, there are a number of factors as to why we don’t have the same issues here in Canada. Much of it has to do with the much more extensive safety net that we have in Canada than exists in the US – people are not naturally litigious, not even Americans – they are forced to take choices like commencing an action because there are no alternatives. A court case is exhausting and uncertain for an injured person. Also, and I believe this is critical, at least in the context of automobile accidents, there are higher policy requirements in Canada than in many US states, meaning there is a larger pool of money to draw on for injured parties, and many cases are settled out before court, as there is also a large no-fault presence in Canada, with public auto insurance in Quebec and western Canada. Second, our medicare system deals with many concerns that arise from catastrophic injuries without limit or cap, although insurance and lawsuits are necessary to obtain appropriate care not covered by government health plans.

          But, our courts have also been more conservative with damages. Non-pecuniary damages, in other words those designed to compensate for pain and suffering and loss of amenities, were capped by the Supreme Court of Canad in 1978, where the court set an upper limit of $100,000 for non-pecuniary damages in “catastrophic” cases. Inflation has increased this upper limit to approximately $265,000. Canadian courts have also been reluctant to award significant punitive damages claims or exemplary damages except in the most egregious cases, and even then nothing that would bankrupt a big company (or insurer). The courts in my view in Canada take punitive fines or damages to be the role of the state as regulator, and they are focused on compensation for actual loss. Also, juries in Canada are not as common in civil trials, and do not make high damage awards in my experience.

          My twocents anyway!

          • bmaz says:

            From what I know, I tend to agree with that. Problem here is that corporations and manufacturers (and insurers) have been ever more allowed to predatorily roam free over the last 40 years or so. Regulatory agencies and rules have been gutted and ignored. It is the last recourse for the public. If they think that products and services suck now (and the public overwhelmingly does), just wait until the Goopers have taken away the last curb out there, i.e. the tort trial/damage process.

            • Ishmael says:

              Or SCOTUS to keep pulling the ladder up, with its restrictive standing and punitive damage rules. Remember, your Chief Justice is worried about how to protect Exxon from large punitive damages – I mean, not that I’m surprised that he thinks this, but I am surprised he said it in open court without a hint of irony!

              • bmaz says:

                Yeah, that was a little forward of Roberts wasn’t it? I still have hopes that, given time and a new political outlook, Roberts may turn into a decent justice sooner or later; no similar hope whatsoever for Alito and Thomas.

          • readerOfTeaLeaves says:

            Ishmael, I agree that Canadians, largely because they have a better social net, don’t sue as much.

            However, I have several friends who have left medical practice in the US, because they’re so frustrated with the condition of health care, the power of insurance companies, the paperwork, and the risk of being sued. I’ve heard docs say, ‘Good health care depends on good personal relationships and trust. You cannot have that if one party is fearful of being sued for more money than the entire practice makes in five years.’

            Some docs have been traumatized by lawsuits, or seeing their friends sued. I’m not saying docs shouldn’t be accountable; however, the current system is impacting the quality of care while giving ever more power to the insurance companies.

            John Edwards would have been able to address this problem; let’s hope he still has a chance, b/c from what I’m told that man really does understand the complexities involved.

            bmaz – Roberts is hopeless.

            Ishmael, FWIW, Buchanan worked in the Nixon WH, but he is enormously more decent (and, apparently good natured) than Colson, or Liddy. If you ever have a chance to read John Dean’s Conservatives Without Conscience, you’ll see that Dean distinguishes Buchanan as a man who can think for himself, and who doesn’t simply toady to whoever is in power. Also, Buchanan doesn’t do the ‘pile on’ and I can’t recall ever seeing him be personally malicious to anyone. He really does care about the intellectual integrity of an argument.

            The neocons and Coulters, etc, just care about ‘winning’ at whatever cost. Buchanan understands that if you violate your principles to obtain an objective, you’ve only achieved a Phyrric victory. He has an ethical core that the wingnuts and neocons lack.

  10. JTMinIA says:

    Does anyone have an estimate on when the House will vote on its new version? In other words, how many more procedural games can be played this morning? Thanks.

  11. JohnJ says:

    Remember that the one thing that “evil trial lawyers” do is to hold corporations responsible. That is definatly an anti-gooper action and MUST BE STOPPED!

    I wonder how many awards have exceeded a single junior executive’s annual bonus?

  12. JohnJ says:

    “Evil trial lawyers” don’t sue surfs, they only go after rich people! How uncheney un-American!

    • bmaz says:

      And if us evil trial lawyers can no longer sue corporations, we are going to join them; then the people will really be screwed! Joe freaking six pack ought to think about that before he votes Republican. Just kidding. Kind of…..

  13. klynn says:

    Evil trial lawyers are the same as activist judges, you know, the kind that try to uphold the rule of law?

    Goodness Mr. President & VP, this country is tanking and all you have time to do is a round of stomping and name calling? Grow up. Stop your whining. Be responsible for your actions…

    If Bush and Cheney were “true” to their base, a public confession would have happened by now and forgiveness would have been bestowed…Like THAT’S going to happen with the knowledge of information they have gathered to destroy the Dems…Proof of not being a member of “the base”, just the manipulators.

    Listened to the Mark Klein interview yesterday. Best point he made was he did not understand why even the Dems did not bring him in for testimony and stated that only Dodd has stood by him. Basically, both parties are now guilty.

    He’s got a point, we have two whistle-blowers and they have not been brought in for testimony? The telecoms have been brought into testify but these two telecom whistle-blowers have not? Why don’t we add to our calls and faxes for immunity a demand for Klein and Pasdar to give testimony?

    The presidential candidates should even be challenged on this…

    I know, preaching to the choir…

  14. BayStateLibrul says:

    Just thinking out loud while waiting for 3PM…
    Wonder how Fitzy feels about Bushie’s mockery of the trial last
    Saturday night…
    He’s so busy, perhaps he has no time, but….
    As we speak, the Adm is probably preparing for Scooter’s pardon
    on January 20, 2009….
    I know, it’s depressing…

    • Neil says:

      Fitz gave a rare interview to a group of writers (journalists?) including an alumna writing for his alma mater. It was prior to last Saturday night but I took a few things away from it.

      He’s doing more management and fewer trials. As you know, he runs a big office. He’ll tender his resignation January 20, 2009 and take some time off to decide what’s next. In the article, he’s described as “scary smart.” Scary smart – two people come to mind. Don’t be surprised to see his name come up in discussions about FBI Director or AG. LINK

      • emptywheel says:

        It was a sole interview, not a group. And as you know, those articles have a very long lead time. Katie was working on this back in November or earlier (I spoke to her after she had spoken to Fitz).

        And FYI–she too is/was a rugger. She started playing when I was the back captain (She was then a wing, IIRC).

        • Neil says:

          EW, So you knew this was coming and you held out on us!? Just kidding. I misread the article about the group interview. Now I see, Randall Sanborn and Katie walked past a group of journalsists. To my knowledge, Katie Bacon A’93 and a writer from the Regis High School paper The Owl are the only two to get interviews with Fitz while he is the USA. I guess we should look for he next one in a Harvard Law publication. If you don’t mind saying, what did Katie have to say about the interview… can you dish?

      • BayStateLibrul says:

        Thanks for the update and I think I owe you an
        answer to a question you had. My Cong Rep is John Olver, from the
        1st District (I’m about 40 miles northwest of Boston)…

        • Neil says:

          I didn’t realize Olver’s district spanned (from the NY state) as far east as Pepperell. He was my Rep too when I lived in happy valley. LINK

  15. solai says:

    Christy has a new post up about the vote. She also say’s the repubs are trying to force a vote on the Senate version before anything else is voted on.

    • BayStateLibrul says:

      I heard that all three presidential candidates are flying back to DC
      for a vote on taxes/budget…

    • bmaz says:

      That is how I read the scheduling order too. It looked to me like Pelosi had set them up to do just that, but I am not the greatest at reading those things. If the Goopers and blue dogs get to vote on SSCI first, this deal goes down the tubes it appears to me. Have I misread this????

  16. Minnesotachuck says:

    OT – Scott Horton has a great piece up at Harpers on the selective investigation issue re the Spitzer case:

    The key questions that need to be asked go to the extraordinary allocation of resources and manpower for this operation and the application of level standards. Here again, the Bush Justice Department has one set of standards when Republican officials fall into a prostitution ring, and an entirely different set when the target is a Democrat who is threatening the Republican Party’s power base in Albany. We just need to look over the “D.C. Madam” case, which caught in its snare a high-level official of the Bush Administration and a Republican senator. But the Bush Justice Department’s attitude towards that case couldn’t be more different. It is deferential towards the customers and has shown no interest in bringing charges against any of them. It has also engaged in extraordinary somersaults to keep the names of the Republicans caught up in the case out of the media. The two cases, compared with care, point convincingly to a partisan political double standard. . . The Bush Justice Department complains it has no resources to investigate or deal with the case of Jamie Leigh Jones, a woman from Houston who was gang-raped, brutalized and held hostage by American contractors in Iraq. It claims it has no resources to deal with dozens of similar cases involving rape and assault by or against U.S. citizens. It has no resources to deal with hundreds of cases involving massive contract fraud, tallying into the billions of dollars, in Iraq. Its prosecution of white-collar crime across the country has fallen through the floor. But this same Justice Department allocates millions in resources to ensnare a prominent Democratic politician in a sex tryst at the Mayflower Hotel. This evidences an extremely curious set of priorities—priorities which are suspiciously driven by a partisan politics, not a sober and responsible interest in law enforcement.

    The most depressing thing about reading blogs like EW’s here and Horton’s is that they’re able to put out so much thoughtful, fact-based and just plain good writing so frequently. It seems to take me forever to put three coherent sentences together.

  17. Mary says:

    3 – I’d have to spend more time reading all of it and the next two days are going to be bad for me timewise, but my initial response is the opposite of yours.

    I think HJC decided to let AT&T use its petard for some self hoisting.

    The telecoms do have immunity for various kinds of cooperation – that’s just the truth. So here’s the deal (imo, not an expert, subject to my vagaries and changes of mind and to what comes out when things are actually read and researched and not just skimmed and fluffed):

    A. They have immunity for doing what a court order says to do.
    B. They have immunity for emergency cooperation with the AG or a set of designated persons in a situation where a court order is being or will very soon be sought (FISA or non-FISA, although the rules are slightly different and if the order being sought is rejected there are some disclosure requirements).
    C. They have immunity for cooperation with the AG (not officers too, but probably the “AG” as defined in FISA which includes a couple of others but not many) for each specific instance where the AG tells them he doesn’t need a warrant, provides a statutory basis (pretty much here it is the FISA foreign power agent to foreign power agent statute for true intercepts and the pen register etc. authorizations) and minimization procedures that would be compliant with FISA if an order were being sought.

    AT&T very much tried to spin out in its letter that everything it did was covered by the existing immunity provisions. Now, if “teh program” involves any of the many things that have been described, and if the AG “certification” was given once and not for each instance and/or if it had no statutory authorization to rely upon, etc. etc. etc. – – – then they need to go get a backhoe to hoe that row IMO.

    But the fact that they want to make themselves look better to stockholders etc. by floating that position publically gives the HJC the ability to say: See – ATT says it already has immunity under the existing statutes, all it needs is to be able to have an appropriate classified setting to give that info to the court and it wins its suit. NO more statutes needed, ATT says it is already covered with the existing statutes. And the guys on the HJC are going to sit back and let ATT sell that strand of arguments to a court.

    Now there are a couple of interesting things out there. One is that I’m not really sure to what extent Congress can give civil immunity to the Executive Branch an its agents for violations of the Constitution. So even if someone made a good statutory argument, if the program clearly violated the Fourth Amendment, even with an AGs certification, I’m not sure you can rely on the statutory immunity. Once a federal Dist. Ct. Judge ruled that the program DOES violate the Fourth, as Judge Taylor did, then, standing issues aside, the telecoms know they are in deep if someone gets around standing – even if they did have some claim to immunity under the statutes.

    Next, we may finally get some real clarification of whether or not Gen Hayden, in his uniform, gave a press conference where he expressly lied to Congress and the American public when he told us all that dragnets/driftnets were not part of the program and it was a specifically targeted program where “al-Qaeda” or the like were one half of the call. And if maybe there might be some kind of consequences for that kind of blatant lie.

    In any event, it will be particularly interesting to see (or we might not get to see, but we should – there’s no valid reason for keeping it secret) if DOJ told the telecoms that both successive FISC judges thought the program was illegal and unconstitutional; if DOJ told the telecoms before Gonzales told ALL of us (after the program was revealed) that the reason DOJ didn’t ask Congress for the legislation is that they didn’t think Congress would give it (go stir that in the pot of telecom good faith reliance on AG certifications from that point forward and knowledge of no statutory basis to boot); if the telecoms were told, before it became common knowledge, that the Admin was violating the law by not informing both full Congressional intel committees about the program and not EVEN informing the gang of 8 – so did the telecoms know that the program was being run in violation of laws that required disclosure to the intel committees; and if the telecoms were advised of Rockefellers objection and of the fact that the few members of Congress who were advised were not allowed to consult with lawyers (yeah – sell that on good faith with the reams of case law to the contrary and with the reams of people at NSA and DOJ and the PUBLIC TELECOMS who were in on the program and with telecoms who WERE allowed to consult with lawyers even while members of Congress were prevented that avenue) etc.

    I’m with the HJC if I understand what they are doing – which is to say, ok if you are going to publically say that everything you did was legal and you already have/had statutory immunity ATT – fine. Let’s go with that and see if a judge(s) agrees.

    What I don’t quite follow from the above is what they (HJC) propose to do for the gap period.

    When they say this:

    First, there is arguably a gap in liability protections for carriers that complied with lawful surveillance requests covering the time period between the expiration of the Protect America Act and the future enactment of more lasting FISA reform legislation. As Speaker Pelosi and Senate Majority Leader Reid have proposed, legislation to fill that gap is justified and important. This provision is not included in the Senate FISA bill, and should be included in any final legislative product.

    I’m not sure exactly what they are getting at (and they don’t mention the gap period when Gonzales signed off rather than Comeey or Ashcroft in the clips above) as far as what they want to do. PAA is so damn broad, but it reads as if they are saying that as long as what is being done right now WOULD HAVE been covered by PAA if it had been renewed, then they will ok it in legislation that may be passed which will be narrower. I guess that is the inevitable trade off, but I’d only give it if I were them if they begin to make some push right now for detailed information and exactly what is being done and what was done under PAA while it was in effect.

    • bmaz says:

      =evil insurance defense lawyers and bean counters that churn because they bill hourly and have a standing policy to make everything difficult and fight even clear cut claims in order to discourage claimants. If you want to know who is driving up insurance, you might want to take a look there…

  18. ralphbon says:

    I’m noticing that the HJC letter refers to telecoms “that participated in the warrantless surveillance program” — dropping the usual construction, “alleged to have participated.” Is this relatively new, or has everyone pretty much ditched the “alleged” canard?

    • MadDog says:

      I’m noticing that the HJC letter refers to telecoms “that participated in the warrantless surveillance program” — dropping the usual construction, “alleged to have participated.” Is this relatively new, or has everyone pretty much ditched the “alleged” canard?

      It seems that the Administration has also dropped the “alleged” critter as of yesterday:

      Fails to Provide Liability Protection to Private Sector Partners. The new House bill fails to provide liability protection to companies that assisted the Government’s efforts in the aftermath of the September 11th attacks to prevent another attack. Affording liability protection to those companies is a just result and is essential to ensuring that our Intelligence Community is able to carry out its mission.

  19. earlofhuntingdon says:

    A point obliquely raised here is that major telecoms may have given ready access to all telecomms over their network (for a hefty price not disclosed in any public budget). But that doesn’t mean that only the US government is data mining the hell out of that information. Remember the old James Coburn movie about the evils of Ma Bell? Sometimes truth is stranger than fiction.

      • earlofhuntingdon says:

        I especially liked how the actor underplayed his portrayal Ma Bell’s Adolf Eichmann-like banal bureaucrat.

    • BooRadley says:

      You raise an excellent point. The telecoms know the feds already have the information, which gives them “cover.” If it leaks out, they can blame the feds. On the micro level collection agencies are always looking for telephone numbers. Entrepernurial types at the telecoms can provide them.

      • earlofhuntingdon says:

        Something tells me that the “double dipping” – profitably charging me for my cable service then claiming ownership of my personalized viewing habits and making a lot more profit using or selling that data to marketeers (without telling me or asking permission) – is not limited to their cable operations.

        One of the great spiked debates we’ve never had – unlike every other developed country – is over privacy rights. It was important to have before 9/11; the leviathan that is now the Surveillance State makes having that debate more critical.

        This administration acts out the catechism that no law should ever interfere with a crony making money. We don’t have to tolerate that.

  20. tbsa says:

    Bush has stated over and over that the teleco’s did nothing illegal. If this is true why do they need immunity?

    • earlofhuntingdon says:

      That “nothing illegal” conclusion comes out of Bush’s domesticated Department of InJustice. My guess is it wouldn’t last long if released into the wild. That is, if other lawyers who read and analyzed the basis for that conclusion could stop guffawing before tearing it to shreds.

    • BooRadley says:


      No sir. You made it clear just a moment
      ago that your men never take matters into
      their own hands. Your men follow orders
      or people die. So Santiago shouldn’t have
      been in any danger at all, should he have,

  21. BayStateLibrul says:

    Interesting map. Jerrymandering not necessary anymore in the State?
    Yup, we’re right next door to Niki Tsongas (I wanted to vote for her
    but they didn’t like my ugly fake ID)

  22. MadDog says:

    I wonder how much of this wrt to warrantless surveillance is based upon secret OLC opinions?

    I specifically mean cuties such as this:

    The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.

  23. bmaz says:

    A quick update on the State of the Nation. Glorious Leader petulantly screams that he will veto the House Bill in his morning dissembling to the press:

    President Bush said Thursday that the House Democrats’ version of a terrorist-surveillance bill would undermine the nation’s security and that if it reaches his desk, he would veto it.

    Ratcheting up his rhetoric, Bush said, “The American people understand the stakes in this struggle. They want their children to be safe from terror.”

    While this lineup of financial/economic news looks like this according to the lineup of most viewed/important articles on the subject at MSNBC website:

    Mortgage relief plan falling short
    Paulson: More mortgage lender rules needed
    Chrysler to shut down for two weeks
    February retail sales worse than expected
    Feb. foreclosures up 60 percent over year before
    Oil touches new high of $111 a barrel
    Can the economy get any worse?

    Thank goodness for the old lion Ted Kennedy, a beacon of truth and sensibility in the fog of lies:

    Replying to Bush, Sen. Edward M. Kennedy, D-Mass., said the president was trying to bully Congress and mislead the people.

    “He refuses to accept that under our system of government, neither the president nor the telecommunications companies gets to decide which laws to follow and which to ignore,” Kennedy said in a written statement.

    “The president wants Congress to pretend that his administration did not conduct a massive, illegal, domestic warrantless surveillance program that was one of the most outrageous abuses of executive power in our nation’s history. Rather than accuse Congress of playing politics, the president should stop playing politics with our national security,” he said

    Thank you Teddy.

    • BayStateLibrul says:

      The good news is that the Sweet Sixteen with its betting, brackets and bubbles is on the horizon…
      (Frank Deford)

    • Ishmael says:

      Secretary Paulson should be in the running for your Captain Renault of the Day Award (apologies to Atrios). Nobody knew better than the guys at Goldman Sachs, where Paulson came to Treasury from, how fucked up the mortgage market was – that’s why Goldman Sachs made billions shorting the subprime market last year, when everybody else was still in the game.

      • BooRadley says:

        You’re exactly right. GS liquidated their position before the market collapsed:

        Ben Stein Rips Goldman Sachs over Subprime Mess

        All Things Considered, December 4, 2007 · TV personality Ben Stein knows how to pick a fight. In a weekend column in the New York Times, Stein declared the investment bank Goldman Sachs “irresponsible” for selling large quantities of mortgage-backed securities and then “shorting,” or betting against them, in the market.

        Stein — an unabashed conservative, capitalist and Goldman Sachs shareholder — went on to level some charges against Treasury Secretary Henry Paulson, who used to head the investment bank. He says Paulson shouldn’t be presiding over efforts to address the subprime mess because he ran a firm that helped create it.

        Goldman Sachs calls the charges categorically untrue.

    • readerOfTeaLeaves says:

      Logged on to point out that it sure seems that the House GOP, and Boosh’s speechifying this a.m. are intended to push bad economic news out of the main headlines.

      But they’re also trying to keep that as-yet-unreleased Pentagon study, showing there’s NO link between AQ and Iraq off the front pages, IMHO.

      Also, NYT reporting that Carlyle Group (not Bush Sr, just a subsidiary) was leveraged 31:1 in dollars. Strangely, banks are calling in their loans. Whodda thunk it?

      No doubt they also want Fallon off the front page.
      Many reasons for them to shout and create a big kerfuffle over the FISA bill.

      I thought the HJC letter was outstanding.
      Methinks they’ve taken a few lessons in clear writing from the CCIA.

  24. bmaz says:

    You know, Ben Stein is like Pat Buchanan to me; I don’t agree with everything they say, maybe not even half of it, but they are honest and consistent in their convictions, even if they are wrongheaded. I will take that any day over the modern two faced hypocritical conservative jackals.

    • Ishmael says:

      Respectfully disagree – both Buchanan and Stein, with their pal Safire, are unreconstructed Nixonites, just better spoken and more media savvy than Liddy or Colson or Cheney or Rumsfeld!

      • Rayne says:

        Jeebus, Ishmael, even Nixon wasn’t as far to the right as the neo-cons in office now. I didn’t like the man even as a kid, but Nixon was a piker compared to the criminals currently running our country into the ground. A break-in at Dem HQ is nothing compared to taking possession of ALL of our telecommunications and financial data, or lying us into a bankrupting war for the sole purpose of profiteering.

        • Ishmael says:

          Again, respectfully disagree! When it comes to the unindicted co-conspirator/war criminal/Southern Strategist/Red Baiting sociopath that was Nixon, I can’t put it better than they guys at LGM this morning – “The Essence of Dick”


          The only reason Nixon used the plumbers instead of the the telecoms to do his dirty work was that the technology wasn’t as wired yet.

      • bmaz says:

        Oh, I don’t disagree with any of that, not one bit. All I am saying is that they are consistent with their bad opinions as opposed to just having them up for sale or changing them with the wind like McCain and all the modern ilk. They most certainly do, however, have the faults you describe.

      • masaccio says:

        I never read Safire, even his lexicography stuff, but in his discussion of “waterboarding”, while written with some of his usual arch language, he flatly calls it torture, and calls out those like that idiot Kessler on The Daily Show who tried to distinguish it from the Japanese version. Link.

        Why did boarding take over from cure, treatment and torture? Darius Rejali, the author of the recent book “Torture and Democracy” and a professor at Reed College, has an answer: “There is a special vocabulary for torture. When people use tortures that are old, they rename them and alter them a wee bit. They invent slightly new words to mask the similarities. This creates an inside club, especially important in work where secrecy matters. Waterboarding is clearly a jailhouse joke. It refers to surfboarding” — a word found as early as 1929 — “they are attaching somebody to a board and helping them surf. Torturers create names that are funny to them.”

    • ralphbon says:

      You know, Ben Stein is like Pat Buchanan to me; I don’t agree with everything they say, maybe not even half of it, but they are honest and consistent in their convictions, even if they are wrongheaded. I will take that any day over the modern two faced hypocritical conservative jackals.

      For those who can stand the cognitive dissonance of reading an essay by Pat Buchanan 90% of which is faultless from a progressive perspective, I commend this.

  25. Mary says:

    50 – and now ATT is also saying that under EXISTING law it did nothing wrong (per its letter) and under existing law it already has immunity.

    So HJC just called, in one of the few contexts that ATT and NSA can’t intercept.

    • bmaz says:

      Heh heh, just as an erstwhile idle thought, you think that AT&T has figured out that there will be a PR backlash from getting immunity? Wouldn’t that be special….

      Told you they were too cute by a half with that deceptive letter. I would have written the Qwest missive, only shorter.

    • bmaz says:

      Actually, you have seen some discussion of that right here. Yes, I do agree, theoretically anyway; but in practice, you would have a real hard time procedurally in getting that argument through a court. It makes for a nice law school discussion, but it will not help any aspect or any person of the real life cases and people at issue.

  26. JTMinIA says:

    Because of something that I did (quite often) in the 70s, my memory is weak. Can you point me to a thread (or two) for previous discussions? TIA

    • bmaz says:

      Well, I discussed it briefly at the end of the main post here. There is a link at said end of said post to an article by a law school professor of some sort that I thought discussed it pretty fully. Can’t remember how much it was discussed in the comments.

  27. JohnLopresti says:

    I wonder if the email universal capture is going to be appropriate for the blueribbon commission if Senate agrees. I noted again AT+T’s allusion to the or designee, whereas the authorized signers are as Mary characterizes, a specified list of officials named by job title in 18USCode §2511 and 2518.

    On the OT exchange re the speechwriter’s having scripted Bush to disparage trial lawyers, there is a campaign strategy aspect to that Republican plank, namely, trial lawyers are known to be generous contributors to the Democratic party in the US, but the Republican aspersion is based on vilification of the people and their profession. Having seen the inside of corporate counsel as well as having visited the lists the wherein insurance counsel jousts with defenders of the corporeally injured, I would add that part of the insurance defense gambit of benefits delay calculus is a projection of the likely damages, and likelihood that the judges selected to hear or arbitrate will award only minimal penalties; even in instances keyed to calendar of time passing doubling or trebling damages; and nearly always seeking compromised experts. In our state there are various elected state officials and oversight bodies to scrutinize these affairs, but corporate and insurance counsel ingenuity usually finds workarounds; I have spent considerable effort encouring those watchdogs, and legislators, to take a view sufficiently wide that patterns of subornment become obvious in the macro view and become controllable, whereas in individual cases the injustices become miniaturized and have less impact, seeming less offensively unfair. There is a lot of plain basic deceit practiced in that area of defense law, as well, sending warnings and badgering the injured, then waiting a while to see if the hurt inspires more aggressive complaints or if, in contradistinction, if the threats simply work and have the effect of diminishing the cost of defense.

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