Mr. McConnell argued on Tuesday that the expanded surveillance powers granted under the temporary measure should be made permanent.
He also pushed for a provision that would grant legal immunity to the telecommunications companies that secretly cooperated with the N.S.A. on the warrantless program. Those companies, now facing lawsuits, have never been officially identified.
Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies. [my emphasis]
But Glenn is just now catching onto something that bmaz has been harping on for some time. So long as the Attorney General approved the program, the telecoms would have indemnity.
With regard to FISA immunity, JAO in comments makes the important point that FISA, from its inception, already provided that telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. Presumably, that means that with regard to what they did over the last six years, they had no such certification for at least some of Bush's warrantless activities which they enabled.
They may have lacked this certification because Ashcroft refused to provide it, and/or because Ashcroft was kept in the dark about some of what they were doing, and/or because they are concerned about the period of time when (as we now know, as a result of James Comey's testimony) the DOJ refused to certify the legality of the surveillance activities (and threatened to resign en masse if it continued), and Bush ordered it to continue anyway. If we lived in a society with either an open government or a Congress that understood its oversight responsibilities, we would know why the telecoms lacked this certificate and thus are in need of retroactive liability. Since we don't, we're left to guess.
I still maintain that as long as there is a warrant valid on it's face or a properly certified AG letter that appears valid on it's face, the telcos either have no liability or, alternatively, are entitled to indemnification by the government for any resultant liability and any costs and expenses incurred by the telcos in defending themselves. There is massive liability here, but I just don't believe the telcos ultimately bear that liability. The attempts ats immunity are all about shielding the Bush Administration. Telco immunity is just another shell game fraud being sold like snake oil to the public so that BushCo continues to avoid accountability.
Rather, bmaz is persuasive that there is not direct liability on part of the telecoms (except as it relates to the spying that occurred in the 24 hours when Bush authorized it without DOJ, and therefore AG, approval). But there is a great deal of liability on the part of the government. If the AT&T lawsuit goes forward and a court finds AT&T did improperly share customer call data with the government, then Uncle Sam will end up picking up the tab, not the telecoms.
Which might explain why the Democrats are willing to cave on this. If the federal government is in the hole for billions in settlement costs (which is what we're talking), I can see Democrats seeing the wisdom of giving the telecoms immunity. Not that I agree with it, mind you. But no one is about to elect me to Congress. Maybe we can get Cheney to pay back Uncle Sam for the billions in settlement costs, but I doubt that's going to happen.
At the very least, we need to demand that we don't give the telecoms immunity until after the lawsuits against the telecoms are resolved. As Glenn notes, those lawsuits are one of the only ways we'll ever get to know what kind of shenanigans Dick Cheney implemented with his Unitary Executive.
The pending lawsuits against AT&T and other telecommunications companies for having violated the law by enabling warrantless eavesdropping on Americans' telephone conversations is one of the very few remaining avenues (though not yet the only one) for obtaining a court ruling as to whether the NSA spying program -- which the President ordered for five years at least -- was illegal. If Democrats do what the Times article suggests they are prepared to do, i.e. grant retroactive immunity to telecoms, that would compel dismissal of those lawsuits, which in turn would destroy what is perhaps the last chance for ever obtaining a judicial determination as to whether the President broke the law. What possible rationale would lead them even to consider such a thing?
That is, if Congress really wants to give immunity to the telecoms--which really translates into giving the federal government immunity--make them wait until we at least use the courts to expose the wrong-doing of the past. After all, if we don't, we will never hold BushCheneyAddingtonGonzales responsible for their law-breaking.
The key, it seems to me, is speaking honestly about what the underlying issues are. bmaz has pretty much convinced me--the telecom immunity thing is really a call for immunity for the Administration. And that's something we ought to be able to pressure Democrats not to cave on.
Update: I wanted to elevate this comment from selise (which suggests I'm at least partially wrong):
i think there's evidence that there was a time, early on, without an AG certification.
from USA TODAY:
Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.