The FISA Report

by emptywheel

Laura links to a CQ story based on this SSCI report on FISA. As Starks noted in his CQ article, the report reveals that the telecom companies did not have the requisite approval from the Attorney General for the period following the hospital confrontation; rather, they had White House Counsel Alberto Gonzales' approval.

The committee’s published report on legislation (S 2248) that would rewrite the rules for government surveillance states that telecommunications companies participating in the NSA program received regular letters affirming President Bush had authorized the program.

But all but one of the letters also stated that the attorney general had determined the program to be lawful, according to the report. That letter, which covered a period of “less than sixty days,” instead stated that “the activities had been determined to be lawful by the counsel to the president.”

I'll have my own excerpts of the report in a post shortly. But for now, consider some implications of this:

• Bush did not authorize the program personally after Comey refused to authorize it; Gonzales did. Presumably, they were trying to protect the President (and the Vice President) from responsibility for having done so. But where, then, does the legal responsibility for having violated the Telecommunications Act lie? With the telecoms, for taking authorization from the White House Counsel--who is not approved by the Senate--rather than the Attorney General? Furthermore, does this expose Gonzales legally? Update: I need to make a correction. The report makes clear that Bush authorized the program at each step. It's just that for the post-hospital confrontation period, he was relying on Gonzales to certify it was legal.
• I wonder whether Bush told the telecoms why Gonzales was approving the program rather than Comey subbing for Ashcroft? Did the telecoms know that Comey, not Gonzales, was acting AG? Did Bush simply say Gonzales had approved the program because Ashcroft was sick?
• This report says nothing about the pre-9/11 activities Nacchio has alleged.

Comments

[MarkC]

EW: But where, then, does the legal responsibility for having violated the Telecommunications Act lie? With the telecoms, for taking authorization from the White House Counsel--who is not approved by the Senate--rather than the Attorney General? Furthermore, does this expose Gonzales legally?

I do think this begins to give insight into what Rockefeller was thinking. These excerpts suggest he thought the telcoms were given credible false assurances about the legality of the program and by whom and at what level it had been cleared:

The Committee’s decision to include liability relief for providers was based in significant part on its examination of the written communications from U.S. Government officials to certain providers.

… 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.

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,

if the private sector relied on written representations that high-level Government officials had assessed the program to be legal, they acted in good faith and should be entitled to protection from civil suit.

So he proceeds to tailor the immunity so that it would apply to some but not all of the communications activities. He excuses those which were:

pursuant to a written request or directive from the Attorney General or the head of an element of the intelligence community. . . that the program was authorized by the President and determined to be lawful.

So, in my IANAL reading, there are still two fronts where legal action might still be taken: 1) Against the telecoms when they acted without that specific type of authorization, 2) Against the letter writers in the Executive who misrepresented the legality or the nature of the authorization.

Not that this justifies Jello, but for the first time I can sort of see where it came from.

[Mad Dogs]

EW said: "I wonder whether Bush told the telecoms why Gonzales was approving the program rather than Comey subbing for Ashcroft?"

I think what was happening with those letters is that they were always signed by Fredo as the person who stated that "President Bush had authorized the program" as the Primary signature, and then there was a Secondary signature of the AG stating that "attorney general had determined the program to be lawful".

The one letter missing the AG signature was just a small modification of the above letters and Fred hoped the Telcos wouldn't notice the "minor" discrepancy.

And based on my suspicions above, it would seem that Fredo was always most heavily involved in every aspect of the TSP from its inception/deception to its ongoing pleading of "ignorance" at Congressional hearings.

Fredo has a lot more to answer for than we ever suspected.

And I also would note that Ashcroft would likely nut Fredo in a heartbeat should they ever cross paths again. Ashcroft got hoodwinked by the WH for a long, long time. Ashcroft deserves some of the blame for being so "hoodwinkable".

Who wants to bet whether Fredo always has ready a fast plane and a clean passport to Paraguay ready at all times?