Immunity Provision Invites Phone Companies to Cooperate with Illegal Government Programs

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Senator Feingold made an important argument in the Senate today. He explains how the FISA immunity provision invites telecoms to cooperate with illegal government programs.

For starters, current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the government while also protecting the privacy of Americans’ communications.

Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.

Telephone companies have a long history of receiving requests for assistance from the government. That’s because telephone companies have access to a wealth of private information about Americans – information that can be a very useful tool for law enforcement. But that very same access to private communications means that telephone companies are in a unique position of responsibility and public trust. And yet, before FISA, there were basically no rules to help the phone companies resolve the tension between the government’s requests for assistance in foreign intelligence investigations and the companies’ responsibilities to their customers.

This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives – and even Martin Luther King Jr.

Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

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About Reid’s Potential Delay

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Folks are seeing a glimmer of hope in the FISA battle based on Harry Reid’s suggestion that we might not get FISA done before the July 4 recess.

Before I look closely at what Reid said, let me lay out a few points:

  • Unless something remarkable happens, FISA will eventually pass the Senate with about a 72-25 margin. The bad SSCI bill passed in February with a 68-29 margin, and Steny’s capitulation was tailor-made to pick up the votes of people like DiFi and Amy Klobuchar–not to mention Obama. So there’s absolutely no reason to think a filibuster would be successful or to think that the bill won’t pass.
  • The Senate is close to passing a Housing bill that–though imperfect–would do some concrete things to help Americans stay in their homes and help communities devastated by foreclosures. If Bush signs it. If Bush doesn’t, then the Republicans will have their refusal to do something about the foreclosure crisis to contend with this fall, along with everything else they’re dealing with.
  • The Senate is close to passing the equally imperfect funding supplemental which includes Webb’s GI bill and an extension to unemployment benefits.

As you look at Reid’s comments, remember that Reid is dealing with all three of these playing pieces, not just the one we’re most focused on, FISA. And to the average American, the other two pieces are way more important than the FISA piece. As well-versed as I’ve become in FISA, frankly, I can’t imagine telling my neighbors facing foreclosure that defeating immunity is more important than them keeping their house.

I’m just making an outtamyarse guess, but I’m guessing that Reid’s delay comment last night may be tailored to get action on the housing bill, by holding the two things the Administration wants–FISA and the supplemental–hostage until a hold-out Republican and Bush agree to the housing compromise.

Reid starts by clearly pressuring one Senator on the housing bill–basically saying that if this one Senator doesn’t flip, then the Senate will stay through the weekend and get some housing bill passed.

I know of only one holdup on our being able to complete the housing legislation. If we can’t get that Senator to sign off on this, then we only have one alternative and that is we’ll file cloture tomorrow on another arm of this housing legislation. We will have cloture on that two legislative days later and then we still have one more to do. Now, that would mean we would have to be here over the weekend. Read more →

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Trading our Constitution Away Based on the Word of Alberto Gonzales

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Here’s what Jim Comey had to say about the illegality of the warrantless wiretap program:

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I’m not saying — again, that’s why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn’t say it was illegal. What I don’t understand is why you now won’t say it was legal.

COMEY: Well, I suppose there’s an argument — as I said, I’m not a presidential scholar — that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.

I disagreed with that conclusion. Our legal analysis was that we couldn’t find an adequate legal basis for aspects of this matter. And for that reason, I couldn’t certify it to its legality.

Comey’s a pretty conservative lawyer. Even still, he obviously struggled seriously to figure out whether, if the President said something that had no basis in law was legal, it was legal, or not.

You might think that’s the kind of challenging legal assessment Attorney General Mukasey is doing, preparing (as he surely is) to deliver the immunity the FISA capitulation will give the telecoms within the next week.

But you’d be wrong. As a reminder, here’s what the immunity language in the FISA capitulation says.

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Look at the language carefully. It doesn’t say, "Michael Mukasey, a conservative and complicit–but still a once-respectable–lawyer, must review the program and certify that the program was legal." Rather, it says that, for the telecoms to receive their immunity, the Attorney General (Mukasey) only has to certify that at the time the Administration requested the telecoms’ assistance, they were told, in writing, that the program was "(i) authorized by the President, and (ii) determined to be lawful." There’s no "determining to be lawful" going on now. There’s simply the assertion, on a piece of paper, that someone–they don’t even have to say a lawyer did the determining!!!–someone determined the program to be lawful. It could have been Jenna Bush, on a bender, "determining the program to be legal." So long as she could manage to put pen to paper to certify as such–that’s the only standard the FISA capitulation requires!! Me, you, my dog McCaffrey–anyone of us could determine the program to be legal; had we done so, and told the telecoms as much, they go scot free.

And, in fact, it’s almost that bad. We know, after all, that on one of the certifications, someone almost as incompetent as Jenna on a bender (though not quite as competent as my dog McCaffrey) "determined the program to be lawful." Read more →

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What Should We Call the Telecoms?

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I’m in a wretched mood because Sears just called and told me, after assuring me last week they could get me a fridge this week, and after they sent me a badly damaged fridge yesterday, and after then promising I’d have a fridge today, then kept me on the phone for an hour and a half to tell me they won’t actually have my replacement fridge to me until Monday and oh by the way would you like a gift card for the trouble of having to unload and reload three different fridges so you can shop at our crappy store some more?

I tell you, always buy local or you’ll end up looking like a chump like me.

So I thought I’d put my crappy mood to some use to try to brainstorm the appropriate moniker for what the telecoms after they receive their Congressional pardon sometime next week. They won’t really be "pardoned felons," because we never got to the point of a jury trial to certify them as felons. I guess "pardoned lawbreakers" might work, but it’s not very catchy.

Once we figure out a catchy name for what you call corporations after the President and Congress decide to put aside separation of powers in order to make sure they avoid any consequences for their law-breaking, I figure we can do some google-bombing and make their legislative win a PR disaster.  

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Obama Replied

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To my letter to him. He told me to fuck off.

Statement of Senator Barack Obama on FISA Compromise

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year’s Protect America Act.

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. Read more →

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A Letter to the Next President of the United States

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Senator Obama:

In his recent opinion on the Boumediene case, conservative Justice Anthony Kennedy reminded the Executive and Legislative branches that we cannot suspend the Constitution in times of crisis.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

He went on to remind "the political branches" that the Article III Courts must not be turned into a mere rubber stamp for the Executive Branch–particularly when, as with habeas corpus, those Courts review laws designed to serve as a check on the Executive Branch.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Ultimately, the Supreme Court found aspects of the Military Commissions Act unconstitutional because it tried to limit the review of Article III Courts to mere review of whether the Administration had complied with its own procedures, and not a real review of the legality of the detention of men at Gitmo.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

Yet this is precisely the kind of procedural review that the current FISA bill envisions. Read more →

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The FISA Bill

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Here it is.

Immunity

As Glenn says, the "immunity" provision here sucks ass. Here’s the operative language:

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Contrary to what the WSJ suggested, this provision puts no restrictions on whether the directives were authorized by anyone but the President–all it takes to get off scott free, in this bill, is for the President to have said the program was legal, regardless of whether it was or the whether the telecoms should have questioned whether the directives were legal.

Minimization

The minimization rules on this still suck. FISC gets to review the procedures themselves, to make sure they will adequately protect US persons’ data. But the FISC does not get to review whether the government is doing what it says it’s doing with regards to minimization–the AG and the intelligence branch still get to do that.

Wiretapping Overseas

This bill provides significantly more protection for Americans traveling overseas, requiring an extra level of review before tapping an American traveling abroad.

Wiretapping in the US

This bill has slightly more protections for Americans in the US, prohibiting wiretaps if a communication is intended entirely for people within the US. That’s a slight improvement, of course, because the bill still allows the collection of information on–say–an email in which one person is outside the US. Read more →

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Details on the FISA “Compromise”

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CQ and WSJ are finally giving more details about what Steny and Jello Jay have concocted with their Republican buddies and telecom lobbyists. CQ confirms what we’ve been hearing–that the immunity would basically consist of a District Court reviewing the authorization, with almost no way to rule against the telecoms.

One source said the federal district court deciding on retroactive immunity would review whether there was "substantial evidence" the companies had received assurances from the government that the administration’s program was legal.

And it appears that Steny’s grand bargain consists solely of prospective review of the programs, rather than review as the program is being implemented.

Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.

Of course, note the word "process" here–it sounds like FISA still doesn’t get to review the actual choices.

There’s an interesting wrinkle in the WSJ version, though, that I find notable. The telecoms would have to prove that either the AG–or an intelligence agency head–signed off on the wiretap requests.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed. [my emphasis]

That’s an interesting detail, because up until now, we’ve been told that the Attorney General approved this program, with the sole exception of the period immediately following the hospital confrontation on March 10, 2004. After that confrontation, the SSCI had reported, the White House Counsel (yup–Alberto Gonzales) approved the program for a period of not more than 60 days. Read more →

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The FISA Shaft Is Underway

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As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up Read more →

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Steny’s Discharge

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Steny Hoyer wants you to believe he’s having a discharge problem.

But he’s not.

Which is kind of weird, don’t you think? That Steny would try to excuse his own cowardly actions because of someone’s–or someone’s lack of?–discharge, when, as sympathetic as you might be to Steny about his discharge problem, you know it’s just an embarrassed excuse. 

And frankly, you realize that the Constitution trumps Steny’s discharge problem anyway? 

Honestly, now, if Steny’s having a bunch of so-called Democrats coming to HIM with their own problems with civil liberties, just five months short of the election, we Democratic voters ought to know about that. With names attached.

But right now, Steny’s got nothing. But his own claimed discharge problems. 

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