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The Immunity Card

October 14, 2007 - by Donny Shaw

Last week, the President laid out his bottom line for signing the FISA fix bill that Congress is bringing to the House floor on Wednesday. Speaking to reporters on the White House’s South Lawn Bush said, the bill “must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.”

In August, Congress passed the Protect America Act (PAA), which allows the administration to bypass acquiring a warrant and eavesdrop on conversations between U.S. citizens and foreigners, as long as the foreigner is the target of the investigation. Because the bill eliminated the involvement of warrant-issuing FISA court, it provided no oversight of the administration’s eavesdropping on U.S. citizens, making it impossible to know how much privacy Americans are giving up and whether the foreigner is actually the target of the investigations. Congressional Democrats, who passed the PAA in fear of being considered “soft on terrorism,” got denounced instead as being “soft on civil liberties.” The current bill, the RESTORE Act, seeks to undo some of the damage the PAA did to their reputation and — depending on your perspective — U.S. citizens’ civil liberties.

There are more than 40 lawsuits currently pending against the telecommunications companies that are alleged to have participated in the Bush administration’s warrantless (and many believe illegal) wiretapping program. Bush has asked repeatedly for Congress to grant immunity to the telecoms since at least May. So far, they have held back.

But they may finally be looking to play the immunity card. The ACLU, via Firedoglake, has discovered that “the Senate bill (Committee draft) does contain immunity/amnesty for the telecom companies…Including retroactive immunity for anything they’ve done wrong in cooperating in illegal domestic spying for the past six years.” Unlike the House, The Senate hasn’t moved their FISA fix bill out of committee yet, so the draft that ACLU saw could change — through both committee and floor amendments. The House bill does not (at least not yet) provide immunity for the indicted telecoms.

In light of the ACLU’s leakage, the question is: Why, especially when nobody except the administration knows the extent of what the companies did, would senate Democrats approach FISA negotiations with the President ready to grant immunity to the telecoms?

Glenn Greenwald at Salon provides some crucial background info and takes a guess:

>Here is a list of all registered Verizon lobbyists, and here is a partial list of some of the lobbying firms working on behalf of AT&T. AT&T was the fifth largest contributor to Rockefeller’s [the Senate Intelligence Chairman in charge of writing the bill] last campaign, followed by the National Cable and Telecommunications Association in Sixth place, Bell South in Ninth Place, and Verizon was in the top 20.

>It’s basically legalized bribery and influence peddling — they pour money into the campaign coffers of these Senators from both parties, pay former government officials such as Jamie Gorelick to help them, and then these Senators jump and pass laws providing that they will receive amnesty for serious felonies.

I’m guessing that it’s a bit of what Greenwald suggests and a bit of the fact that most voters care more about protecting their privacy than holding corporations accountable. In other words, Congress is giving the President the telecom immunity provision he wants so that he will sign the bill that, to most Americans, strikes a responsible balance between security and civil liberties. It requires the administration to apply to the FISA court for general warrants that cover the communications of targeted foreign groups, even when communicating with Americans, as well establishing oversight and auditing requirements that allow Congress to keep tabs.

The closing lines of a Sunday Washington Post editorial sums up the sentiment congressional Democrats are playing up to. It also twists the whole thing around and illustrates just how ludicrous it is for Congress to even be thinking about immunity:

>House Democrats are understandably reluctant to grant … wholesale protection [to telecommunications companies] without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.

An editorial from the New York Times from the same day paints the other side of the picture:

>Mr. Bush says the law should give immunity to communications companies that gave data to the government over the last five years without a court order. He says they should not be punished for helping to protect America, but what Mr. Bush really wants is to avoid lawsuits that could uncover the extent of the illegal spying he authorized after 9/11.

Another element to consider in this debate is the historical precedent that immunity for the telecoms would set. James Balkin writes on Balkinization:

>Presidents will be encouraged to violate all sorts of laws— even laws like FISA that are carefully crafted to constrain executive action— secure in the knowledge that they can always get Congress to clean up their mess later on. The Detainee Treatment Act and the Military Commissions Act are not precedents for even more immunities; they are bad precedents that show that Congress is all too willing to immunize even the worst offenses— including war crimes— as soon as the President says the magic words “terrorism” and “national security.” Many Congressmen and Senators have been outraged by the Yoo-Bybee Article II argument that contends that the President need not obey any Congressional laws that he believes limit his Commander-in-Chief powers, effectively giving the President carte blanche to violate law in secret as he sees fit. But if Congress gives the President and those who cooperate with the President retroactive immunity every time he breaks the law, this in effect vindicates the Yoo-Bybee theory. Even worse, it gives the President the blessing of Congress for doing so. With Congressional immunity, he has no pressure to prosecute private companies who cooperate with his prior illegal activities. And if Congress is willing to say retroactively that their acts were justifiable, he has even less reason to prosecute his own subordinates for following his orders.

For some excellent background on FISA, PAA, and RESTORE, check out Balkin laying it all out on

RESTORE is slated to hit the House floor on Wednesday and it will probably be on the Senate floor next week. There’s still time to call your representative and senators to let them know how you feel about the issue. The Electronic Frontier Foundation has some tips on calling and a form to help you look up the Capitol Hill phone numbers you need.

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