A number of people have pointed to this story about the gaping holes in the nativist Republicans’ border fence that just happen to coincide with the property lines of powerful GOP donors. Several of you have even pointed out that Ray Hunt–a big Bush donor and PFIAB member–happens to own a chunk of the property that the wall skirts.

Just 69 miles north, Daniel Garza, 76, faces a similar situation with a neighbor who has political connections that reach the White House. In the small town of Granjeno, population 313, Garza points to a field across the street where a segment of the proposed 18-foot high border wall would abruptly end after passing through his brick home and a small, yellow house he gave his son. “All that land over there is owned by the Hunts,” he says, waving a hand toward the horizon. “The wall doesn’t go there.”

In this area everyone knows the Hunts. Dallas billionaire Ray L. Hunt and his relatives are one of the wealthiest oil and gas dynasties in the world. Hunt, a close friend of President George W. Bush, recently donated $35 million to Southern Methodist University to help build Bush’s presidential library. In 2001, Bush made him a member of the Foreign Intelligence Advisory Board, where Hunt received a security clearance and access to classified intelligence.

Over the years, Hunt has transformed his 6,000-acre property, called the Sharyland Plantation, from acres of onions and vegetables into swathes of exclusive, gated communities where houses sell from $650,000 to $1 million and residents enjoy golf courses, elementary schools, and a sports park. The plantation contains an 1,800-acre business park and Sharyland Utilities, run by Hunt’s son Hunter, which delivers electricity to plantation residents and Mexican factories.

The development’s Web site touts its proximity to the international border and the new Anzalduas International Bridge now under construction, built on land Hunt donated. Hunt has also formed Hunt Mexico with a wealthy Mexican business partner to develop both sides of the border into a lucrative trade corridor the size of Manhattan.

But I haven’t seen anyone comment on what Hunt seems to be building in South Texas. He has donated land for a bridge, built a development that spans the border, for which Hunt’s own family members provide the utilities. He has done so in partnership with rich Mexicans he declines to name. "A lucrative trade corridor the size of Manhattan."

This is not just about a Bush crony getting a pass on being evicted to make way for a futile racist-inspired wall. This is about a Bush crony building his own little principality that will–I’m guessing–turn the labor of poor Mexicans into McMansions on the US side of the border. This has all the trappings of a little world that supersedes the sovereignty of the US.

Which gets rather eerie when you couple this information with the fact that Ray Hunt was one of the first people to invest in oil in Kurdistan (I say "first" in the post, but he was just one of the first).

Does it surprise you that the first company to sign an oil deal with Iraqi Kurds is Hunt Oil, a company with very close ties to Bush and our country’s intelligence infrastructure?

Texas’ Hunt Oil Co. and Kurdistan’s regional government said Saturday they’ve signed a production-sharing contract for petroleum exploration in northern Iraq, the first such deal since the Kurds passed their own oil and gas law in August.A Hunt subsidiary, Hunt Oil Co. of the Kurdistan Region, will begin geological survey and seismic work by the end of 2007 and hopes to drill an exploration well in 2008, the parties said in a news release.

Nope. It doesn’t surprise me, either. But I am interested in what it portends for long-term plans in Iraq.

First, some background. The Hunt family that owns Hunt Oil (it’s privately held, so we don’t get to scrutinize financial statements) is one of the big money Texas donors behind the Bush family political empire. Ray Hunt, the current chair of the company, is also on the board of Halliburton and the King Ranch, meaning he probably knows to duck when he goes quail hunting with Dick Cheney. Hunt is also on the board of trustees for Shrub’s new presidential library, which has just announced its plans for a wacky democracy institute that will give cover for more imperialism around the world. Oh, and Hunt is also on PFIAB, which means he gets to review a huge amount of intelligence information and then refuse to reveal its classification and declassification activities–not to mention weigh in on whether or not the President’s illegal intelligence activities are illegal or not.

It’s also worth noting that one of Hunt Oil Company’s planes has been spotted taking off and landing at a CIA training facility.

In short, Hunt Oil Company is as wired in as oil companies get–which is saying something.

Now do you see why I find it interesting that Hunt Oil Company is the first company into Kurdistan’s oil fields?

You see, in addition to making Hunt richer, both these deals appear designed to really screw with the sovereignty of an established coutry: Iraq, in the case of the Kurdistan deal, and the US, in the case of the "Sharyland Plantation." They provide spooked up Hunt with little back doors in and out of key countries.

Now why do you suppose one of Bush’s closest cronies is investing in all these back doors?

Update: I should have added–this kind of ambiguous sovereignty is precisely what attracted the likes of Jack Abramoff to floating casinos and Native American reservations. I’ve always suspected–though it’s just a suspicion–that there’s a money-laundering function that we’re not aware of (thanks partly to the Republican candidate for President’s rather selective investigation of Abramoff, I might add). Crony capitalists don’t like real sovereign spaces because they’re much more diligent about enforcing their own laws.  

The NYT has a fascinating profile of Jose Rodriguez–the guy who ordered the destruction of the CIA torture tapes. This anecdote conveys the kind of guy we’re dealing with:

Not long after the tapes were destroyed, Mr. Goss held a management retreat for top agency officials meant in part to soothe tensions among the agency’s dueling branches. There the deputy director for intelligence — the head of analysis — complained openly about the arrogance of the clandestine branch and said undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one participant in the meeting, and shouted in coarse language that the analysis chief should “wake up and smell the coffee,” because undercover officers were at the “pointy end of the spear.”

The clandestine branch, Mr. Rodriguez was making it clear, would do what it wanted.

While the profile doesn’t offer much new in the story of the torture tapes (though it does provide a more compelling case that Goss couldn’t control Rodriguez than I’ve previously seen), I’m most interested that Rodriguez apparently prevented any accountability for those who conducted the pathetically incompetent kidnapping of Abu Omar.

It would become known inside the Central Intelligence Agency as “the Italian job,” a snide movie reference to the bungling performance of an agency team that snatched a radical Muslim cleric from the streets of Milan in 2003 and flew him to Egypt — a case that led to criminal charges in Italy against 26 Americans.

Porter J. Goss, the C.I.A. director in 2005 when embarrassing news reports about the operation broke, asked the agency’s independent inspector general to start a review of amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over destroyed C.I.A. interrogation tapes, fought back. A blunt-spoken Puerto Rico native and former head of the agency’s Latin America division, he had been selected by Mr. Goss months earlier to head the agency’s troubled clandestine branch. Mr. Rodriguez told his boss that no inspector general review would be necessary — his service would investigate itself.

The incident is significant, first of all, because of the likelihood that the IG report finding the interrogation methods used by the CIA constituted cruel and inhuman treatment–possibly illegal. This incident suggests Rodriguez refused to allow the IG to do its job–oversee and correct problems in the CIA. Which, in turn, increases the already large chance that the IG report is central to the reasons for the destruction of the torture tapes.

But the incident is interesting for another reason. By preventing any real evaluation of the Italian job, Rodriguez may have ensured that those responsible remain in significant positions within the CIA. You might be interested in this news, particularly if you’re in NY:

Milan Spy Boss on Rebound: CIA officer Jeff Castelli, mastermind of the botched February 2003 “extreme rendition” of an al Qaeda operative in Milan that ended in the indictment of 26 Americans, all but one CIA employees, might be on the rebound. According to a reliable intelligence source who demanded anonymity, Castelli was reprimanded by the CIA’s Accountability Board last year for the much-ridiculed caper and dispatched to the Air War College at Maxwell Air Force Base in Alabama. But Castelli is now a candidate to be the CIA’s next station chief in New York — an astounding comeback, especially considering that Italy is planning a trial in absentia of the CIA employees implicated in the kidnapping, perhaps as early as this spring. “Well, they can’t send him overseas,” said the source, “because of the Milan thing.” Italian warrants have been issued for Castelli and the others, who would risk arrest if they tried to enter any European Union country, or many other states.

Am I the only one who thinks it’s a bad idea for someone who oversaw legendarily bad tradecraft to be chief of a US station?

It’s not clear to what degree Rodriguez is responsible for Castelli still having a job–and in the US! (It sounds like Castelli was not sent to Alabama until 2006, after Michael Hayden took over the CIA.) But it’s certainly the kind of coddling of incompetence and abuse Rodriguez seems to have fostered.

Remember those four five six who knows how many telecom cables to the Middle East and South Asia that were cut? Ryan Singel finds a UN official suggesting at least four of them may well have been cut intentionally.

The five underseas cables that were cut or went out of service in the Middle East in recent weeks might have been sabotaged, an officer at the International Telecommunication Union told the Agence France-Presse.

"We do not want to preempt the results of ongoing investigations, but we do not rule out that a deliberate act of sabotage caused the damage to the undersea cables over two weeks ago," the UN agency’s head of development, Sami al-Murshed, told AFP.[…]

Some experts doubt the prevailing view that the cables were cut by accident, especially as the cables lie at great depths under the sea and are not passed over by ships," Murshed said on the sidelines of a conference on cyber-crime held in Gulf state of Qatar.

(I don’t know if this is his source, but it’ll suffice for a link.)

Let’s see. Since the cables were cut, Hamas agreed to close up its borders with Egypt, Pakistan’s rigged election wasn’t rigged enough to save Musharraf, and the Saudi Foreign Minister has been on a "for your ears only" tour around the world. Any of those look like probable explanations?

Over a month ago, I noted an LAT article naming three of the sources for the reporting that Steven Hatfill was a "person of interest" in the anthrax investigation. But it appears that Hatfill didn’t learn all of the sources–Judge Walton is preparing to hold at least one reporter in contempt for not revealing the sources for her Hatfill reporting.

A federal judge said Tuesday he will hold a former USA Today reporter in contempt if she continues refusing to identify sources for stories about a former Army scientist under scrutiny in the 2001 anthrax attacks.

U.S. District Judge Reggie B. Walton said reporter Toni Locy defied his order last August that she cooperate with Steven J. Hatfill in his lawsuit against the government. Walton indicated he would impose a fine until she divulged her sources, but that he would take a few more days to decide whether to postpone the penalty as she pursues an appeal.

The judge is also considering whether to find former CBS reporter James Stewart in contempt.

[snip]

Walton previously ordered five journalists to reveal all of their sources. Stewart and Locy refused, saying Hatfill was partly to blame for news stories identifying him as a suspect after his attorney provided details about the investigation.

The story if interesting for two reasons. First, it seems to pinpoint who shared their sources (after reportedly being released to do so) and who didn’t. Judge Walton compelled testimony from five journalists–Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart–and Locy and Stewart are the only two for whom he is considering contempt.

Also, as I pointed out last month, Hatfill now appears to have the sources for leaks that actually weren’t that damaging–stories that made it clear that Hatfill was just one of a number of people under suspicion for the attack.

This is where this suit will get interesting. Many of the stories that Hatfill named in his suit complained about the revelation of facts pertaining to ongoing FBI searches: news that dogs searching for anthrax had responded to locations on Hatfill’s property.

The agents quietly brought the dogs to various locations frequented by a dozen people they considered possible suspects — hoping the hounds would match the scent on the letters. In place after place, the dogs had no reaction. But when the handlers approached the Frederick, Md., apartment building of Dr. Steven J. Hatfill, an eccentric 48-year-old scientist who had worked in one of the Army’s top bioweapons-research laboratories, the dogs immediately became agitated, NEWSWEEK has learned. "They went crazy," says one law-enforcement source. The agents also brought the bloodhounds to the Washington, D.C., apartment of Hatfill’s girlfriend and to a Denny’s restaurant in Louisiana, where Hatfill had eaten the day before. In both places, the dogs jumped and barked, indicating they’d picked up the scent. (Bloodhounds are the only dogs whose powers of smell are admissible in court.)

The same article even states that the government didn’t have anything that it considered real proof against Hatfill.

But officials say they aren’t close to making any arrests in the case. "We’re still a long way from any proof that we could take into court," says one senior official.

[snip]

Officials have been particularly careful to point out that Hatfill is one of "around 12" people they are looking at. They say he is not a suspect, or even a target of the investigation.

So it’s not like this article pinpointed Hatfill as the one target of the investigation–it did just the opposite.

Which is why I think things might get interesting from here. I’m not actually sure what the standard of secrecy for non-grand jury material is. But some of the stories Hatfill points to–and therefore the leaks–don’t support the case that the leaks pinpointed him and therefore ruined his career. Perhaps the government will settle to make this go away, but perhaps not; perhaps the government will push this trial, which might lead to more disclosure, rather than less.

Which raises questions about why three of the government’s sources would release reporters and up to seven others wouldn’t (Locy claims she has forgotten which of the ten people she spoke to were her sources, and Stewart says he shouldn’t have to reveal his sources since other law enforcement officers are on the hook already for the leaks). Is it possible the remaining sources are the really damaging ones?

Interestingly, Judge Walton seems to have little patience with journalists, like Locy, who can’t pinpoint their sources for a story.

"I’m not suggesting that Ms. Locy would not be truthful, but it would be convenient for reporters in this type of situation to say ‘I don’t remember’ and then be off the hook," Walton said. "That would be one way to avoid the serious consequences of the law."

Judy Miller, of course, pretty much got "off the hook" for the sources for much of her reporting on Valerie Wilson. She had to reveal Libby, as her first source for Valerie’s identity, though she never had to reveal the people who told Judy that Valerie worked under the name, "Flame." Of course, Fitzgerald and Judge Hogan were the ones making the decision to let her off the hook, not Walton; Walton just had to sit and watch Judy say, "I don’t remember" over and over again for a full day of testimony.

Remember how Bill O’Reilly once tried to claim he had won a Peabody Polk award when Inside Edition earned it after O’Reilly left? Well, now Josh and the folks at TPMM have won one, fair and square.

Will Bunch captures the importance of this award, for Josh, and for the blogosphere, quite well (h/t folo).

The George Polk Awards are kind of like the Golden Globes of American journalism . Not as well known as those Oscars of the news business, the Pulitzer Prize, the Polk Awards are nevertheless probably a close second in terms of prestige, and this year I am especially blown away by the quality of the work they honor.

[snip]

But I want to highlight one Polk Award that shows there are emerging models for using the very tool at the root of the turmoil of the news business — the Internet — as a newfangled way to re-invent investigative reporting — by using new techniques that emphasize collaboration over competition and by working with readers and through collective weight of many news sources to expose government misconduct.

[snip]

Hopefully, this acknowledgment of what one savvy blogger and his team have accomplished is a milestone that will speed the day when mainstream journalists realize that the best kind of blogger like Marshall is truly one of our own kind, using new tools and a new way of thinking to break a news story that otherwise might have not been discovered.

I think there was never a doubt that TPMM provided coverage that was instrumental in exposing the scandal. I’m glad to see one of journalisms institutions recognizes that fact.

SCOTUS just declined to review the 6th Circuit’s dismissal of the ACLU warrantless wiretapping suit.

 The Supreme Court rejected a challenge Tuesday to the Bush administration’s domestic spying program.

The justices’ decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

McJoan and Christy point to the key issue here–standing. As Glenn points out, judges have ruled that this warrantless wiretapping program was illegal, yet also ruled (at least the 6th Circuit) that no one had standing to do anything about it. 

It’s not clear whether the 9th Circuit will rule different on the majority of the 40 or so cases out there. But for now, this decision sure seems to put the immunity debate in a different light. After all, if judges won’t let any of these suits advance because no one can prove standing, then why bother with the constitutionally suspect step of having Congress intervene in the Courts?

The rub is the Al-Haramain lawsuit, where plaintiffs once had documented proof that the government had intercepted calls between one of the Charity’s members and its lawyers in the US. Only the government’s Kafkaesque games, which demand lawyers for the charity treat their own memory as classified, prevents the charity from proving standing.

Is Congress going to bigfoot into the privileges of another branch of government because one Islamic charity once had proof of the Bush Administration’s law-breaking? Or is it the threat of a differing opinion in the 9th Circuit the basis of the single-minded panic about immunity?

This WSJ editorial beating up on Dems for their shiny new FISA spine is full of the illogical blathering you’d expect. Take this paragraph, which claims that even with immunity from PAA and even with a FISA court order, the telecoms simply won’t do as they’re mandated to do.

Mr. Reyes claims that existing wiretap orders can stay in place for a year. But that doesn’t account for new targets, which may require new kinds of telecom cooperation and thus a new court order. Mr. Reyes can make all the assertions he wants about immunity, but they are no defense against a lawsuit. For that matter, without a statute in place, even a renewed order by the Foreign Intelligence Surveillance Court is likely to be challenged as illegitimate. A telecom CEO who cooperates without a court order is all but guaranteed to get not merely a wiretap lawsuit, but also a shareholder suit for putting the company at legal risk.

Apparently, the WSJ believes that even if the telecoms have immunity, it’s no defense against a lawsuit (someone better tell Mitch and Mike McConnell that all their immunity efforts are for naught). And even if the FISA Court issues a warrant under that statute known as "FISA," the telecoms would regard such an order as illegitimate, because there’s no statute supporting it.

And of course, the WSJ parrots the now mandatory claim that ACLU and EFF are really trial lawyers wearing low-paying disguises.

So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies.

I’m most amused, though, by the closing paragraph, which gets to the heart of the panic over FISA.

Mr. Bush has been doing his part in this debate, but his political capital is waning. The Republican who needs to make himself heard now is John McCain. The Arizona Senator is voting the right way, but he seems curiously disengaged from a debate that plays to his national security strengths. The time to speak up is before the next 9/11 Commission. [my emphasis]

Bush’s "political capital is waning" must be GOP-speak for "don’t look now because the Democrats have stood up to Bush."  And, pathetically, the WSJ whines that John McCain isn’t cowering Democrats into unquestioning obedience, either.

It’s like flying without a net, isn’t it, WSJ? When you can’t rely on Bush’s "political capital" to cow others into compliance?

Let’s see if these results last after they count the vote, but it looks like Musharraf’s party lost today’s election–resoundingly.

From unofficial results the private news channel, Aaj Television, forecast that the Pakistan Peoples Party would win 110 seats in the 272-seat National Assembly, with Mr. Sharif’s party taking 100 seats.

Mr. Musharraf’s party, the Pakistan Muslim League-Q, was crushed, holding on to just 20 to 30 seats. Early results released by the state news agency, The Associated Press of Pakistan, also showed the Pakistan Peoples Party to be leading in the number of seats won.

The Election Commission of Pakistan declared the elections free and fair and said the polling passed relatively peacefully, despite some irregularities and scattered violence. Ten people were killed and 70 injured around the country, including one candidate who was shot in Lahore on the night before the vote, Pakistani news channels reported.

Fearful of violence and deterred by confusion at polling stations, voters did not turn out in large numbers. Yet fears from opposition parties that the government would try to rig the elections did not materialize, as the early losses showed.

If it’s true that Musharraf’s government didn’t (or didn’t succeed in) rigging the elections, score one for democracy. But that doesn’t mean the US is prepared to deal with the aftermath–even if, as projected, Bhutto’s party the PPP comes out ahead.

The results opened a host of new challenges for the Bush administration, which has been criticized in Congress and by Pakistan analysts for relying too heavily on Mr. Musharraf. Even as Mr. Musharraf’s standing plummeted and the insurgency gained strength, senior Bush administration officials praised Mr. Musharraf as a valued partner in the effort against terrorism.

The NYT, at least, makes it sounds as if Musharraf is ready to pack it in.

Two politicians close to Mr. Musharraf have said in the past week that the president was well aware of the drift in the country against him and they suggested that he would not remain in office if the new government was in direct opposition to him. “He does not have the fire in the belly for another fight,” said one member of his party. He added that Mr. Musharraf was building a house for himself in Islamabad and would be ready soon to move.

What will Dick Cheney do without his faithful puppet?

The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both the telcos and the government that are currently pending in Federal courts. There are a handful of different suits out there (40 is a number that has been used, but some have been consolidated); the best known are the Hepting v. AT&T case being prosecuted by the EFF and the al-Haramain case. Under both traditional tort theories, as well as specific statutory provisions under FISA and related statutes, monetary damages are sought by the plaintiffs. These suits are not just critical for the individual plaintiffs, but due to the refusal of the Bush Administration to be honest and forthright about what spying they are doing on the American public, and the refusal of Congress to demand answers and accountability on the same, the civil suits are pretty much the only vehicle that the American public, and posterity, have for finding the truth about what has been both done to them and in their name. The Administration now, of course, wants to close off this avenue of discovery and accountability for their nefarious actions through the immunization of the telcos for their acts (which would result in dismissal of the civil suits).

First off, lets be honest; you don’t need immunity for legal and proper conduct. In this regard, telcos are already specifically protected and "immunized" from liability for anything they did that was even remotely legal and performed under the broad provisions of FISA (50 USC 1801 et. seq.), the general criminal wiretapping statutes (18 USC 2510 et. seq., specifically 18 USC 2520), the Communications Act (47 USC et. seq., specifically 47 USC 605) and the Stored Communications Act (18 USC 2701 et. seq., specifically 18 USC 2707 and 2712). There is already, by existing law, no liability for any conduct undertaken, by either the telcos or the government, in compliance with these statutes. So, make no mistake about it, it is blatantly illegal behavior (and NOT good faith legal behavior), performed at the Bush Administration’s demand and direction, for which the immunity is being sought.

Okay, but many, including, seemingly, members of the SSCI and witnesses (see here and here) argue that the telcos were not operating under statutory "safe harbor" provisions as described in the last paragraph. So, what if the telcos engaged in behavior outside of said "safe harbor" statutory provisions that turned out to be illegal behavior, but did so in response to to heated demands from the Bush Administration, and with assurances by the Administration that there was a legal basis and dire necessity; shouldn’t they be entitled to immunity from massive civil liability damages for that conduct? No; that is where the indemnification portion of the argument kicks in. Indemnification is the act of supplying indemnity in a contract:

An indemnity contract arises when one individual takes on the obligation to pay for any loss or damage that has been or might be incurred by another individual. The right to indemnity and the duty to indemnify ordinarily stem from a contractual agreement, which generally protects against liability, loss, or damage.

It is my contention that the telcos have just such indemnification agreements with the Administration/government, that we do not know about because they are classified and hidden, that so protect them for any liability and losses resulting from the litigation they are faced with; thus they do not need immunity to protect them from potential liability verdicts, they are already covered. Telcos have some of the best attorneys and legal departments in the world, and they also recruit heavily from the upper echelons of the Department of Justice (see, for instance: William Barr and Peter Keisler, who is now, of course, conveniently back in the DOJ leadership). Simply put, telco legal departments are huge, experienced, and cutthroat competent. They did not fall off the turnip truck last night, nor any other night; and they have been dealing with wiretapping issues for law enforcement and national security concerns since the telephone came into use. As someone that has had dealings with such entities regarding bad/illegal wiretaps, I can attest that they always protect themselves vis a vis the governmental entity they are working for and are not shy about the use of indemnity provisions.

Okay, but is there any basis for the Administration having given such an indemnification agreement to the telcos in such an unusual national security scenario and with such massive potential exposure? Yes, indeed that is exactly where such agreements are contemplated (see, also, here). As a perusal of the links will exhibit, the President has the authority under 50 USC 1431 et seq. to authorize exactly the type of immunity agreements that are described herein, and, furthermore, to promulgate specific rules (including secrecy and classification, see 50 USC 1433) for their implementation. Now, it should be noted that one of the provisions of 50 USC 1431 is notification of Congress, specifically the respective Armed Services Committees, if the amount in question exceeds 25 million dollars. It will be interesting to see if this was, in fact, done or if the Administration disingenuously took the position that there was not yet an amount in controversy because there was not yet any known or set amount of indemnified liability (which is my bet under both a reading of 1431 and 1432(f)) and has kept this under their belt with the exception of limited disclosure to the Gang of Four/Gang of Eight as discussed here. In either case, this is potentially an explanation for why even the Democratic Congressional leadership has been compliant in ramming through passage of immunity; they don’t want the public to find out that they signed off on massive liability to be paid out of taxpayer’s pockets.

What if the telcos failed to get such indemnification agreements, or alternatively, they did but the agreements were informal or the government refused to honor them? For the reasons stated above, this is next to impossible to believe; the telcos and their legal departments are simply too tough, experienced and savvy to not have covered themselves. In the unlikely event this did turn out to be the case, however, the telcos still have the right to file a claim against the government for their losses incurred as a result of good faith reliance on the Administration’s assertions and demands. Such a claim would most likely be brought pursuant to the Tucker Act as it would arise pursuant to contract or quasi-contract; although a creative litigator could surely plead other conceivable bases as well.

Conclusion: For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call "protectun Amarikuh".

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, "We believe… that we have all the legal authority we need". This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

One last point. In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

Am I the only one that finds it especially ironic that Poppy Bush endorsed McCain one day after McCain came out with a "no new taxes" pledge? If the timing was unintentional, I’d consider it a rather inauspicious coincidence if I were McCain.