In Congress' FISA Compromise, Immunity May Be a Foregone ConclusionJune 11, 2008 - by Donny Shaw
A compromise on telecom immunity is shaping up behind the scenes of the Senate. According to some Democrats, the deal-making is actually a cover-up for a proposal that satisfies all the demands of the President and the telecom companies, and does little to protect the privacy of law-abiding Americans.
The issue, which has plagued the debate over updating FISA policies for many months, is whether or not Congress should provide retroactive legal immunity for the telecom companies that helped President Bush’s execute his illegal warrantless wiretapping program after 9/11. The companies, AT&T, Verizon, BellSouth and others, are currently facing over 40 lawsuits resulting from their involvement in the illegal program. Most Democrats oppose the idea, saying it would be tantamount to rewarding lawbreakers. Most Republicans, on the other hand, argue that the companies acted in good faith to protect the country and deserve legal protection.
The Hill reports from behind the scenes on the state of play:
>Congressional Republicans are reviewing a Democratic proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.
>That differs from a plan that Republicans, with support from the White House, floated right before Memorial Day that would give that authority to the secret court that operates under the 1978 Foreign Intelligence Surveillance Act (FISA). In both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language. The plan was floated by House Majority Leader Steny Hoyer (D-Md.) and has the support of Sen. Jay Rockefeller (D-W.Va.), the chairman of the Intelligence Committee.
>GOP aides said that Republicans would likely suggest more revisions, but saw the proposal as a step in the right direction.
>“While several issues still remain, Sen. Bond believes he and Hoyer are making progress on crafting an ultimate compromise and remains hopeful that a bill to keep American families safe can be signed into law before the August expiration moves the intelligence community back to 1978,” said Shana Marchio, communications director for Sen. Kit Bond (R-Mo.).
>Rockefeller said he is “mildly optimistic” that the plan could yield agreement, and added that the status of negotiations is “getting pretty darn good.”
Senator Rockefeller (D-WV), as Chairman of the powerful Intelligence Committee, has been leading Senate Democrats in the direction of granting immunity all along. So any deal he considers “pretty darn good” is surely going to alienate a portion of his party. Indeed Senators Chris Dodd (D-CT) and Russ Feingold (D-WI), two senators who have been squarely opposed to granting immunity, issued a letter to congressional leaders yesterday explaining that the deal reported above in The Hill has moved beyond the question of granting immunity to the question of how best to do it:
>With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received “a written request or directive from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful.”
>Information declassified in the committee report of the Senate Select Committee on Intelligence on the FISA Amendments Act, S. 2248, confirms that the companies received exactly these materials:
>>The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.
>>The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.
>In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.
The Democratic proposal figuring into to compromise calls for the same kind of evaluation, but in federal district courts instead of the secret FISA court. So, according to Dodd and Feingold’s argument, the Democratic proposal also amount to a foregone grant of immunity.
As we reported in May, this shift from the question of granting immunity to the question of how best to grant it, stems directly from a set of proposals the telecom companies presented to congressional Democrats. Seeing the occasional updates as this compromise has been shaping up over the past month, it seems that the telecoms really are legislating their own immunity.
In October, Ryan Singel of Wired’s Threat Level blog gave interesting evidence that helps to explain the companies’ privileges. He pointed out that the telocom companies facing the lawsuits ramped up their campaign contributions to Senator Rockefeller as the immunity issue took shape in a pattern that looks like this: