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Has Feinstein Found a Compromise?

January 24, 2008 - by Donny Shaw

Dianne Feinstein (D-CA) has an amendment in the telecom immunity fight that just may meet muster. The amendment would kick the question of immunity over to the secret FISA court. The court would have the responsibility of deciding whether the telecommunication companies that helped the Bush Administration execute their warrantless wiretapping program were acting in good faith and if the lawsuits against them should go forward. Here’s Finstein’s point-by-point description of how her proposal would work:

  • First, the Court would determine whether the letters sent by the government to the telecommunications companies meet the conditions of the law.
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  • Specifically, the government must show that its letters comport to Title 18, Section 2511, which clearly states that a certification from the government is required in cases where there is no court order. Under this law, the government must certify in writing that all statutory requirements for the company‚Äôs assistance have been met.
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  • Second, the FISA Court would examine whether companies that provided assistance to the government without a certification did so in good faith and pursuant to an objectively reasonable belief that its compliance was legal.
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  • Third, the FISA Court must determine whether the telecommunications company actually provided assistance.
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    >If the FISA Court determines that the company did not provide assistance, or that the assistance provided met the legal requirements or was reasonable and in good faith, the immunity provision would apply.
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    >If the FISA Court determines that none of these requirements were met, immunity would not be granted.

This is considered by many to represent a compromise between the Administration, who says they will accept no less in a FISA bill than full legal immunity for the companies, and liberal Democrats, who want the issue to be resolved normally through the standard judicial process. Salon’s Glenn Greenwald, who speaks from a perspective shared by many Democrats, explains why the two extremes do not accept Feinstein’s amendment:

>Telecoms already have immunity under existing FISA law. As long as they acted in good faith, they are already immune from liability. There is no reason that the federal courts presiding over these cases can’t simply make that determiniation, as they do in countless other cases involving classified information.
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>Even Feinstein’s “compromise” is a completely unnecessary gift to telecoms: to transfer the cases away from the federal judges who have ruled against them to the secret FISA court. But even that pro-telecom proposal is unacceptable to Rockefeller (and the administration), because that would still leave telecoms subject to the rule of law. Rockefeller’s only goal is to bestow on his telecom supporters full and unconditional protection from having their conduct — and, by effect, the administration’s conduct — subject to a court of law.

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