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The Pre-Emptive Cave on Immunity

Glenn Greenwald catches the Democrats preparing to cave to Administration demands for retroactive immunity for the telecoms.

Mr. McConnell argued on Tuesday that the expanded surveillancepowers granted under the temporary measure should be made permanent.

Healso pushed for a provision that would grant legal immunity to thetelecommunications companies that secretly cooperated with the N.S.A.on the warrantless program. Those companies, now facing lawsuits, havenever 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 commentsmakes the important point that FISA, from its inception, alreadyprovided that telecoms would be immune from liability if the AttorneyGeneral certified that the law did not require a warrant for thesurveillance that they allowed. Presumably, that means that with regardto what they did over the last six years, they had no suchcertification for at least some of Bush’s warrantless activities whichthey enabled.

They may have lacked this certification because Ashcroft refused toprovide it, and/or because Ashcroft was kept in the dark about some ofwhat they were doing, and/or because they are concerned about theperiod of time when (as we now know, as a result of James Comey’stestimony) the DOJ refused to certify the legality of the surveillanceactivities (and threatened to resign en masse if it continued), andBush ordered it to continue anyway. If we lived in a society witheither an open government or a Congress that understood its oversightresponsibilities, we would know why the telecoms lacked thiscertificate and thus are in need of retroactive liability. Since wedon’t, we’re left to guess.

I think Glenn’s speculation–that there is no AG authorization–is, for the most part, incorrect. Here’s bmaz (and see also this comment):

I still maintain that as long as there is a warrant valid on it’s faceor a properly certified AG letter that appears valid on it’s face, thetelcos either have no liability or, alternatively, are entitled toindemnification by the government for any resultant liability and anycosts and expenses incurred by the telcos in defending themselves.There is massive liability here, but I just don’t believe the telcosultimately bear that liability. The attempts ats immunity are all aboutshielding the Bush Administration. Telco immunity is just another shellgame fraud being sold like snake oil to the public so that BushCocontinues 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.

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