Friday, February 15, 2008


If you haven’t been talking to your friends about the Foreign Intelligence Surveillance Act (FISA) already, you may have an opportunity over the next few days while Congress is in recess. You may hear something like, "How could they go on recess and leave a measure so critical to the security of our country left hanging?" If your friends don’t raise the issue, perhaps you should. As citizens of what we consider a free country, we need to be talking about this issue among ourselves and with our elected representatives in Washington.

On Valentine’s Day a majority of the members of the House stood up to oppose President Bush’s demand that they pass the Senate’s version of the FISA bill. The Senate’s version provided retroactive immunity for the telecoms who participated in the illegal wiretapping of the administration after 9/11. The House version hadn’t. The President said that failure to pass the bill before it expires at midnight Saturday will result in intelligence gaps that will be exploited by terrorists. He also said he would veto any bill that came to his desk without immunity for the telecoms.

The beginning point of the conversation might be asking whether anything is put at risk by the House's not acting the legislation before it expires Saturday night. The heart of the discussion should focus on "liability protection" and whether that has anything to do with creating a gap in our intelligence collection capability. Consider these three questions in your conversations:

1. Why is the Bush administration so insistent on giving retroactive immunity to the telecoms? Because to them, the "real issue" is not intelligence collection gaps but liability protection for the private sector. Mike McConnell, director of national intelligence, admitted as much in an interview Thursday morning on National Public Radio:

NPR: Mr. McConnell, the Bush administration says that if the Protect America Act isn't made permanent, it will tie your hands, intelligence hands, especially when it comes to new threats. But isn't it true that any surveillance underway does not expire, even if this law isn't renewed by tomorrow?

MCCONNELL: Well, Renee it's a very complex issue. It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time-frame. However, that's not the real issue. The issue is liability protection for the private sector.

According to standing law, a telcom would already be immune from prosecution/lawsuit if they did not break the law, or were given essentially a warranted request from the gov't to assist. If that's true, what is the immunity in this case and why would Bush veto a bill that didn't have it?" Immunity in this bill would retroactively protect all assistance by telcoms since 9/11 (or whenever exactly, i forget) no matter really how that assistance was obtained. Basically saying if they helped they are immune from civil lawsuit. This blanket protection would prevent any details about their assistance from ever coming to light whereas the current immunity would require court review to determine if a law was broken.

Taking them at their word, George Bush and Mike McConnell are putting the nation at risk in order to insure that AT&T and Verizon do not have to be held accountable in a court of law for having broken the law.
McJoan, one of the most knowledgeable followers of this legislation, says
Twisted and corrupt indeed. But, remember, it's not just so that AT&T and Verison aren't held accountable. It's to prevent legal action going forward that, in the discovery process, would expose the full extent of the administration's illegal activity. This isn't just protecting AT&T and Verizon. It's protecting the Rove/Gonzales/Cheney/Bush cabal.
Friday morning’s Rocky Mountain News, not known as a bastion of liberalism, editorialized,
No immunity:
If immunity is in the final legislation - and Bush has said he'd veto any bill that doesn't include it - it would kill the 40-plus lawsuits that have been filed against telecoms in federal court. The litigation challenges the legality of the program and the actions of telecoms that cooperated with the government.

If the lawsuits don't move forward, we may never learn if some telecoms compromised the privacy of innocent Americans. A grant of immunity could also set a dangerous precedent for other businesses when federal agents or local cops who don't have a court order demand private or confidential information about their customers.

2. Didn’t the President’s illegal wiretapping program begin in response to the panic after 9/11? Not according to the editorial (and confirmed in other sources):

Court documents released in October revealed that Nacchio [Qwest’s CEO at the time] first met with national security officials in February 2001 - six months before the 9/11 attacks. "Nacchio's account," The Washington Post reported, "suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon."
3. If immunity is not granted will the private sector refuse to cooperate with the government? After all of the speeches Republicans made on Thursday, you might think this was a big deal. It is, but not in the way you may think. The claim is dishonest and the Bush administration knows it. Under the law, telecoms are required to cooperate with legal requests from the government. They don’t have any other option. Without immunity, the telecoms will be reluctant in the future to break the law again, which should be a desirable outcome. It was the Qwest legal team’s opinion that the request was not legal, so they didn’t participate. AT&T and Verizon said that Washington persuaded them that it was legal and so they participated.

What the protests from both the administration and the corporations amount to is one law-breaker telling another law-breaker, “you cover for me and I’ll cover for you.” Or, as the Rocky Mountain News concluded:

Letting this litigation proceed would not, as Bush said Wednesday, punish companies that want to "help America." Businesses that want to help America need to be mindful of the Constitution - and so should the government.
Do you really need convincing that it is important to talk with family and friends about this issue?
- Milo

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