Shorter Mike and Mike: No, We Don’t Want Immunity Contingent on Actually Finishing the IG Report

I think I’ve given as much consideration to what it would take to have a meaningful study of what the Administration did with its illegal wiretapping program as anyone (though also see this piece on immunity from Brian Beutler, one of the last pieces he did before he got shot last week). And I gotta say–the fact that DNI Mike McConnell and AG Michael Mukasey claim they’d advise Bush to veto the bill if it included Jeff Bingaman’s amendment–holding off on giving the telecoms immunity until after the IG study mandated by the bill was completed–makes me rather suspicious that Bush intends to spike the IG investigation (h/t Spencer).

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

[snip]

H.R. 6304 contains such protection, but the amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President’s other advisors, will recommend that the President veto any bill that includes such an amendment.

Now, I’d be charitable and buy Mike amd Mike’s claim that they’re just worried about a delay. Except that they make this completely cynical bid to suggest that the SSCI’s review of the program was adequate to expose what really happened with this program.

Deferring a final decision on retroactive [immunity] for 15 months while the Inspectors General complete the review required by H.R. 6304 is also unnecessary. The Senate Intelligence Committee conducted an extensive study of the issue, which included the review of the relevant classified documents, numerous hearings, and testimony. After completing this comprehensive review, the Committee determined that providers had been authorized by the President and had been determined to be lawful, and that the providers "had a good faith basis" for responding to the requests for assistance they received.

Muaksey learned his cynical lessons on language from Orwell well, huh? They parrot not only the language used by the bill–"had been determined to be legal"–to grant immunity even though the DOJ could not certify the program as legal, but they also parrot the word–"comprehensive"–used in the FISA bill to describe the IG investigation. But it’s not entirely clear to me whether SSCI has seen all the things that the IGs would see. Here’s what the IG investigation is supposed to review:

(A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;

(B) access to legal reviews of the Program and access to information about the Program;

(C) communications with, and participation of, individuals and entities in the private sector related to the Program;

(D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and

(E) any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.

And it’s also supposed to include the results of the DOJ OPR review–which of course, thanks to the obstruction of George Bush–hadn’t been restarted yet when the SSCI conducted its "comprehensive" review in early fall 2007.

The Counsel of the Office of Professional Responsibility of the Department of Justice shall provide the report of any investigation conducted by such Office on matters relating to the Program, including any investigation of the process through which legal reviews of the Program were conducted and the substance of such reviews, to the Inspector General of the Department of Justice, who shall integrate the factual findings and conclusions of such investigation into its review.

So we know that–at the very least–the IG investigation will have reviewed John Yoo’s role in this process, whereas SSCI has not done so. You think maybe there’s something that OPR found but is hiding (and on that note, here’s the LAT’s recent discovery of something I covered last year–that OPR never has to reveal the results of its investigations)? Mike and Mike don’t want you and I to find out what that is until after McConnell’s former buddies in the privatized spying racket get their immunity.

And, too, though Mike and Mike don’t want to say it, they also don’t want us to have any leverage over both the telecoms and the Administration(s) to make sure we get our IG review. Telecom immunity, after all, is a pretty fucking big carrot. We’re way more likely to get what we want out of them–timely cooperation and security clearances–if we withhold that carrot until we get what we want.

But Mike and Mike, for some reason, are dead set against that happening.

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  1. emptywheel says:

    Incidentally, am I the only one wondering whether “the President’s other advisors” in that underlined bit includes Dick and ADD?

  2. AZ Matt says:

    Providing prompt liability protection is critical to the national security.

    They don’t really explain this, just expect you to except it.

    • rapt says:

      They don’t really explain this either:

      As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

      A lot of assumptions (lies) there which simply fit the previous seven years of propaganda, and have NO basis in fact.

  3. Mary says:

    It’s not a future tense “intends to” on the investigation spike. It’s a done deal already. Obama’s capitulation sealed it.

  4. oldtree says:

    Were it not for the telecom companies breaking the law. There is no compromise. Either the law or anarchy. Which is it?

    • bobschacht says:

      Good! The best news I’ve heard today.

      Maybe the Senate is feeling the heat. Even the famous left-wing group, the League of Women Voters, is advocating against this new FISA legislation now. Hey Steny, howsja doon today? Aren’t you glad that you adopted this baby?

      Bob in HI

      • JimWhite says:

        I thought the delay was because the Jesse Helms funeral is tomorrow. Delaying that vote for a day is the best things Helms has ever accomplished in the Senate.

        • cboldt says:

          I thought the delay was because the Jesse Helms funeral is tomorrow.

          It is, basically. Some senators are going to be in NC tommorow, and it wasn’t clear that they could reliably make it back to DC in time for voting tomorrow evening.

          As long as the bill get to President Bush’s desk by August, he’s “cool” with delays.

  5. earlofhuntingdon says:

    Congressional Democrats seems as morbidly fearful of accountability as George and Dick. The only point of having leverage is to use it. I can’t imagine the Democrats doing any such thing. But for some reason, they imagine the Goopers feel the same.

    President Obama is likely to have a rude awakening when Hatch, Cornyn, Specter and Graham start shouting about imposing restraints and accountability on even his weak-kneed version of investigations and reform, not to mention critiquing the inevitable skeletons that will fall out of his or his Cabinet members’ closets.

  6. KagroX says:

    Man, if the IG reports never happen and the “administration” sells the line that it’s OK since the SSCI report was sufficient, then Sheldon Whitehouse is gonna look like a real fucking chump for having voted for this, after his big whiny speech about how outraged he was over the documents he saw.

  7. DWBartoo says:

    Marcy, just a note of great appreciation.

    What you provide us, in, oh, so many ways, is absolutely astoundingly important.

    So, my small thanks.

    Additionally, I especially enjoy your post when you, Mary and cboldt converse, then I just sit back and listen and learn.

    Thanks to the three of you.

  8. WilliamOckham says:

    Hmmm… what could they be worried about:

    Maybe the next AG won’t do his part? Seems unlikely…

    They lose in court before the immunity kicks in? More likely…

    Something really embarrassing comes out (of the court cases) before the election? Likelier still.

  9. john in sacramento says:

    Off topic, but not really

    FBI HEADQUARTERS NOT CLEARED FOR CLASSIFIED INTELLIGENCE

    The Federal Bureau of Investigation, which is part of the U.S. intelligence community, has the lead responsibility for domestic surveillance of foreign intelligence and suspected terrorist targets. So it seems like a rather crippling defect that the J. Edgar Hoover Building, the FBI headquarters in Washington, DC, cannot satisfy government standards for storage and use of classified intelligence documents.

    “The Hoover Building does not meet the Interagency Security Committee’s criteria for a secure Federal facility capable of handling intelligence and other sensitive information,” the Senate Appropriations Committee observed in a new report on the 2009 Commerce, Justice and State Appropriations bill.

    • DWBartoo says:

      It is interesting when buildings take on the qualities of those whom the buildings are named for.

      This is a fundamentasl law of edifical karma.

        • DWBartoo says:

          Unfortunately the site itself is a problem so applications of Feng Shui would drag on for years …

    • hackworth says:

      All that shite goes in Cheney’s gun safe for safe keeping. Cuz Uncle Dick is the only one with the key.

  10. MadDog says:

    …The intelligence community, as well as law enforcement and homeland security agencies, continue to rely on the voluntary cooperation and assistance of private parties in other areas. Continued delay in protecting those who provided assistance after September 11 will invariably be noted by those who may someday be called upon again to help the Nation…

    (My Bold)

    Hmmm…I wonder what Mikey and Mikey meant by this? Could it be that other private parties too have broken the laws by voluntarily providing assistance?

    Hmmm…folks like Visa, Mastercard, your good ol’ boy banker, the airlines, the rent-a-car critters, etc.?

    Seems bloody fookin’ likely!

    • DWBartoo says:

      In boardrooms across the Homeland, patriots are most happy to comply …”Yes! yes!”

      ‘Tis NEVER skin off such as those noses …

    • emptywheel says:

      Damnit MadDog, that was precisely the phrase I was coming back to.

      It’s the other “voluntary” programs we need to be asking about, that’s what I think that means.

      • MadDog says:

        I’ve been pondering that “other” stuff and wondering if the FISA 4th Amendment Erasure bill doesn’t give retroactive immunity to more than just Telcos.

        Gonna have to do some digging and see if my paranoia is justified.

        • MadDog says:

          Gonna have to do some digging and see if my paranoia is justified.

          Nope, no retroactive immunity for other than Commcos.

          And after I thought about it for a bit, that makes sense, as does the warning to the Senators I imagined occuring in my comment at # 58.

          The reason there is no retroactive immunity for the “others” is simply this:

          1. Nobody has brought a Federal civil lawsuit against the likes of Visa, Airlines, Banks, etc. for violations of privacy.

          2. Folks like Visa, Mastercharge, Financial institutions, Airlines etc. and their records are not subject to FISA strictures and therefore wouldn’t be appropriate to include in the FISA 4th Amendment Erasure bill.

          3. Nobody from the MSM has yet to break a story out about handing over these records to the Administration. DFHs don’t count.

          So, for the time being, those “others” are safely hunkered down out of sight and mind, but you can bet your last dollar, they too voluntarily gave it up!

          • bmaz says:

            Um, well, yes, and not to mention that all those entities move their information through the tubes of the telcos, so the Hoover was already mainlining it like Lou Reed and Keith Richards in a smack den.

          • bobschacht says:

            No *explicit* immunity. But think of those who would be on the hook in a trial involving the Telecoms. Like Bush & Cheney, and other co-conspirators.

            Bob in HI

      • MadDog says:

        And if I may be so cynical EW, another meaning to take from Mikey and Mikey’s “other private parties” statement is a not-so-hidden threat that:

        “Yo Senators! Don’t be voting against this retroactive immunity for Telcos, because a whole bunch of other heavy campaign donors of yours are hangin’ out on the very same limb.

        Yo Senators Dodd, Biden, Bingaman, Durbin, Feinstein, Kerry, Lautenberg, Menendez, Reed, Schumer, etc. you might want to think about all those financial institution campaign donors of yours. Folks like Citigroup, Morgan Stanley, Merrill Lynch, Credit Suisse Group, MBNA Corp, Bear Stearns, Goldman Sachs, JPMorgan Chase & Co, Bank of America, Wells Fargo, American Bankers Assn, etc.

        All of these folks, and friends of yours Senators are voluntarily giving us any and all financial tracking info we ask for. And since each one of them issues a kazillion credit cards, we get that too.

        So don’t be biting the hand that feeds you. Yo Senators, are we making ourselves clear?”

  11. ubetchaiam says:

    I’m not sure that the Bingamon amendment does push such out 15 months; I read the text -whcih I commented on in the earlier call by Christy for ‘calling’ and it consists of 2 sentences being altered on page 90 of the bill which I couldn’t find even on Thomas.loc.gov
    Does anybody know what is one page 90 of the HR6304 that is before the Senate?

    • Nell says:

      ubetchiam, The Bingaman amendment hasn’t been formally filed yet. It’s not the Feinstein one (S.Amdt.5060) that you were talking about on the FDL ‘dialing’ thread, which is not one of the three amendments allotted debate time in the unanimous consent agreement of June 26 (27?).

      The proposed text of the three amendments that will be debated along with explanations are at EFF. Bingaman’s would stay the court cases until 90 days after the release of the report from an IG investigation (in the hope that the Congress would be inspired to revisit immunity then, and ditch it).

  12. Petrocelli says:

    I’m shocked, shocked that you would attempt to impugn the character of any member of BushCo ! /s

    … adding to DWBartoo @ 19, thanks also to WO, Mary02, freepartriot(who did not give me $1,000 to mention his name *g*) and of course, the witty & brilliant bmaz !

  13. ubetchaiam says:

    I can find the Whitehouse amendment which is what Feinstein has co-sponsored but cannot find any Bingamon amendment at thomas.loc.gov. Nor do I see such among the amendments listed. What gives?

    • cboldt says:

      can find the Whitehouse amendment which is what Feinstein has co-sponsored but cannot find any Bingamon amendment at thomas.loc.gov. Nor do I see such among the amendments listed. What gives?

      That’s typical Senate. The amendments aren’t shown to the public until after they have been voted on. I got a kick out of even the “strip immunity” amendment, it’s lister under “Text of amendments” on the day it was introduced, but there is no text following the list of co-sponsors.

      Does anybody know what is one page 90 of the HR6304 that is before the Senate?

      You can get to a pdf version from http://thomas.loc.gov/cgi-bin/…..:H.R.6304:

      And here is … a direct link to the PDF file of H.R.6304 as taken up in the Senate.

      The bill, unamended, requires an internal investigation and report to be completed within 1 year. The Bingaman amendment stays the court cases for that year (or less, if the internal investigation is done QUICKLY), plus 90 days. I presume the 90 days is to permit Congressional review of the report.

      • ubetchaiam says:

        Thanks again; tell me how you found such.
        I wanted to know because, on Christy’s earlier thread about calling, a poster put what Feinstein had sent him and she was claiming co-sponsorship of an amendment that would cause it to be determined whether the letters were legal or not and that she would vote for an amendment re immunity ‘if it was better’ than what she offered.
        Well, she’s flim-flaming again; the text of the amendment she co-sponsored is two lines http://thomas.loc.gov/cgi-bin/…..10arfaE0::

        and one of them is already in the bill at the place the Whitehouse amendment seeks to insert the language in.

        She REALLY needs to be called out on this. John in Sacramento are you listening?

        • cboldt says:

          Thanks again; tell me how you found such.

          There is a consistent “form” for the URLs that pertain to bills, resolutions, and amendments.

          http://thomas.loc.gov/cgi-bin/…..:H.R.6304: for example (trailing colon is important). Just substitute the bill number H.R.2248, S.1234, whatever.

          That gets you to a clearinghouse sort of page. Click “Text of Legislation” then pick whichever version is pertinent. From that page you’ll see a link titled “GPO’s PDF Display” Click that one and then you’ll see a link “Continue to GPO site” I lift the URL that pertains to that link

          http://frwebgate.access.gpo.go…..cs.txt.pdf

          There’s a consistent form for those URLs as well, but the form has more variety and is more complex.

          Lots of people post links that have a /temp/ somewhere in them, e.g. http://thomas.loc.gov/cgi-bin/…..107z7t9R:: Those links go stale in a matter of minutes, so are practically useless.

          For a quick peek at Congressional Action, CLick here and review the “Daily Digest” section.

      • Nell says:

        cboldt,

        I want to express my deepest thanks for your explanations of Senate procedure and timely heads-ups during the last two weeks.

        Question: Where and in what form are unanimous consent agreements made public?

        EW’s update to her 6/28 post and the Wired story on 27 June about the postponement of the vote clearly relied on the text that lays out the time allotted for which amendments, etc.

        Was that just because someone in Feingold’s or Reid’s office helpfully released the statement quoted in the update, or are UC agreements in the Congressional Record, or….?

        • cboldt says:

          Where and in what form are unanimous consent agreements made public?

          Many of them play out in the same day they are entered into, so appear in the Congressional Record “the next day.” For agreements that are to be executed “the next day” or farther out, see Senate Legislative Calendar. If you look at tomorrow’s legislative calendar (usually available around midnight Eastern), you’ll see the modified UC agreement that holds FISA votes for Wednesday.

          And for past Legislative calendars, use this link

        • cboldt says:

          or are UC agreements in the Congressional Record

          My above doesn’t make it clear, but ALL UC agreements are reflected in the Congressional Record. Most of the time, they are buried somewhere in a mass of debate, sometimes they have their own heading and section.

          SOME UC agreements are ALSO memorialized in the Legislative calendar. The ones that appear there typically reflect an agreement made one day, to do something on a future day.

  14. Nell says:

    WO: [Worried lest] They lose in court before the immunity kicks in? More likely…

    Something really embarrassing comes out (of the court cases) before the election? Likelier still.

    But if what they’re worried about is something coming out before the election, they should be willing to accept the Bingaman amendment, which would stay the cases until after the IGs’ report. Not that that would stop them from going for what they really want: full immunity, the cases dead right now.

    • bobschacht says:

      Did Cheney send Ollie North to do the job?

      I mean, these guys are just demented enough to do something like that. Unfortunately.

      Bob in HI

  15. Nell says:

    Thanks, EW. So is it just a question of what they want to let out, then? I.e., if Reid’s office wanted to keep the terms of a unanimous consent agreement private until closer to the day in question, could they?

    (Assuming that the Minority Leader’s office cooperated; I’m taking for granted that both leaders would have the text of any UC agreement).

    • cboldt says:

      if Reid’s office wanted to keep the terms of a unanimous consent agreement private until closer to the day in question, could they? [with minority awareness of course]

      Yes – I believe that the parties collaborate to make the process difficult for observers to predict. I’ve seen hours of quorum call go by, then the majority leader comes to the floor, propounds a UC agreement to an empty chamber (takes 10 to 90 seconds, depending on the length, usually well under a minute), the presiding officer says “Without objection” and the Senate return to quorum call. If a person isn’t “glued” to C-SPAN 2 through the hours of quorum call, one misses it.

  16. ptbridgeport says:

    Dboldt or Marcy, help me with something I’ve been wondering for days. What leverage does Bush have to “spike the IG report”, given that it’s not due until six months into the next administration?

    It seems the only lever is to force the report to come out early somehow. But they can’t directly order the IGs to close up shop, can they?

    • cboldt says:

      What leverage does Bush have to “spike the IG report”, given that it’s not due until six months into the next administration?

      His people are doing the report. He tells them not to work on it.

      The next administration either decides to take it up, or not – either way, when it’s done, the public part of the report will resemble the SSCI report.

    • emptywheel says:

      They can slow-walk the security clearances, and then still require the IG report to come out one year from Wednesday or THursday, as mandated, a year after the bill is signed.

      That’s precisely what he did with the 9/11 Commission, after all, so there is precedent.

      • bmaz says:

        Yep, and I bet there is just no way that Orrin Hatch and like minded Hatchlings in the Senate would bugger up confirmation of any of the necessary appointees

  17. Nell says:

    Repeating something I noted on the FDL ’dialing’ thread (and blogged in more detail):

    The Webb aide I talked to today said that Judge Walker’s ruling in the Al Haramain case is ”changing the game a little” for members of the Judiciary Committee. I expressed the hope that the change was in the direction of eroding support for the bill, since the main effect of that ruling was to expose as a sham the Democratic leadership’s claim that exclusivity was a big part of what was ”won” to make this bill an acceptable ”compromise”.

    His report might mean, though, that Specter’s amendment is shape-shifting — something to keep an eye on.

  18. ptbridgeport says:

    @58, 60 – thanks for the answers. Of course, the slow walking itself will constitute one more impeachable offense, given that the bill makes a point of mandating that security clearances be given out expeditiously. What the hey, throw it on the pile. It sounds like there will be a report in any case, even if it’s one carried out in a six month horizon.

    Nothing prevents an impeachment from being handed out after the culprits have left office. But I suppose when the next Congress is sworn in, they won’t even remember where to find the table to see what’s on it.