I'm more than a bit surprised that nobody has even mentioned this yet... because it has pretty darn big implications.
The Washington Post article:
http://www.washingtonpost.com/wp-dyn...l?hpid=topnews
Spoiler Alert, click show to read:
Senate and Bush Agree On Terms of Spying Bill
Some Telecom Companies Would Receive Immunity
By Jonathan Weisman and Ellen Nakashima
Washington Post Staff Writers
Thursday, October 18, 2007; Page A01
Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.
Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.
"There is absolutely no reason our intelligence officials should have to consult government lawyers before listening into terrorist communications with the likes of Osama bin Laden, al-Qaeda and other foreign terror groups," said House Minority Leader John A. Boehner (R-Ohio). (By Alex Wong -- Getty Images)
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The collapse marked the first time since Democrats took control of the chamber that a major bill was withdrawn from consideration before a scheduled vote. It was a victory for President Bush, whose aides lobbied heavily against the Democrats' bill, and an embarrassment for House Speaker Nancy Pelosi (D-Calif.), who had pushed for the measure's passage.
The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.
Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.
Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government's procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years, Democratic congressional officials said. The Bush administration had sought less stringent oversight by the court and wanted the law to be permanent.
The domestic surveillance issue has been awkward for Democrats since the administration's secret program of warrantless counterterrorism surveillance became public in late 2005. In August, a coalition of Republicans and dissident Democrats passed a measure backed by the White House that put that program on firm legal ground by expressly permitting the government to wiretap foreign targets without a court order, including, under certain circumstances, when those targets are communicating with people in the United States.
But Democratic leaders insisted that the law expire in February, so they could try again to impose more restrictions on the administration's ability to spy domestically. Most Democratic lawmakers and party members -- backed by civil libertarians and even some conservatives -- wanted the new legislation to ensure for example that future domestic surveillance in foreign-intelligence-related investigations would be overseen by the foreign surveillance court. The court was created in response to CIA and FBI domestic spying abuses unmasked in the mid-1970s.
But conservative Democrats worried about Republicans' charges that the Democratic bill extended too many rights to suspected terrorists. "There is absolutely no reason our intelligence officials should have to consult government lawyers before listening in to terrorist communications with the likes of Osama bin Laden, al-Qaeda and other foreign terror groups," said House Minority Leader John A. Boehner (R-Ohio).
The measure "extends our Constitution beyond American soil to our enemies who want to cut the heads off Americans," said Rep. Louie Gohmert (R-Tex.).
An adroit Republican parliamentary maneuver ultimately sank the bill. GOP leaders offered a motion that would have sent it back to the House intelligence and Judiciary committees with a requirement that they add language specifying that nothing in the measure would apply to surveilling the communications of bin Laden, al-Qaeda or other foreign terrorist organizations.
Approval of the motion would have restarted the legislative process, effectively killing the measure by delay. Democratic leaders scrambled to persuade their members to oppose it, but with Republicans accusing Democrats of being weak on terrorism, a "no" vote proved too hard to sell, and so the bill was pulled from the floor.
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Senate and Bush Agree On Terms of Spying Bill
Stacey Bernards, a spokeswoman for House Majority Leader Steny H. Hoyer (D-Md.), called the Republican maneuver "a cheap shot, totally political."
Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, called it a "perfect storm" of progressive Democrats who did not think the bill protected basic constitutional rights and of Republicans who took advantage of the lack of unity. "It was too precipitous a process, and it ended up in a train wreck," she said. "It was total meltdown."
"There is absolutely no reason our intelligence officials should have to consult government lawyers before listening into terrorist communications with the likes of Osama bin Laden, al-Qaeda and other foreign terror groups," said House Minority Leader John A. Boehner (R-Ohio). (By Alex Wong -- Getty Images)
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The House bill contained safeguards against spying on U.S. citizens that the Bush administration said would have interfered with its national security investigations. Some liberals, on the other hand, complained that it still allowed the surveillance of Americans to occur without individual warrants.
It would have empowered the special surveillance court to issue warrants allowing the government to intercept for up to one year the phone calls and e-mails of groups of foreign targets, such as al-Qaeda or Hamas, without requiring that the surveillance of each person be approved. If the foreign target of the surveillance was calling a person in the United States significant enough also to be deemed an intelligence target, then an individual warrant would be required, as provided under past law.
The bill would have required the court to review the government's surveillance procedures to ensure that they were designed to target only people outside the country. Such reviews could be delayed up to 45 days after surveillance began in emergencies. It also would have barred warrantless physical searches in the United States, including of homes, offices, computers and medical records, and made clear that the National Security Agency and the CIA could not eavesdrop on targeted Americans, even those abroad, without a traditional court warrant.
It was unclear late yesterday whether similar provisions are included in the Senate version of the bill that attracted bipartisan support from lawmakers and key intelligence officials.
The Senate deal was reached after the White House made available to the intelligence committee some of the documents underlying the administration's post-Sept. 11 warrantless surveillance program, to encourage the panel to include the telecommunications immunity provision.
Democrats warned yesterday that the Senate intelligence panel's consensus bill must gain the approval of the Senate Judiciary Committee, whose chairman and ranking Republican have said, like their House counterparts, that they are wary of granting immunity to telecommunications companies.
In June, the Judiciary Committee subpoenaed the documents underlying the warrantless surveillance program, and Chairman Patrick J. Leahy (D-Vt.) and ranking Republican Arlen Specter (Pa.) said they wanted to see those documents before endorsing any immunity clause. "I'm not going to buy a pig in a poke and commit to retroactive immunity when I don't know what went on" in the past, Specter said Tuesday on CNN's "Situation Room." "I agree with Arlen," Leahy said on the program.
The New York Times article:
http://www.nytimes.com/2007/10/18/wa...in&oref=slogin
Spoiler Alert, click show to read:
Senate Deal on Immunity for Phone Companies
Article Tools Sponsored By
By ERIC LICHTBLAU
Published: October 18, 2007
WASHINGTON, Oct. 17 — Leaders of the Senate Intelligence Committee reached a tentative agreement on Wednesday with the Bush administration that would give telephone carriers legal immunity for any role they played in the National Security Agency’s domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks, a Congressional official said Wednesday.
Senators this week began reviewing classified documents related to the participation of the telephone carriers in the security agency program and came away from that early review convinced that the companies had “acted in good faith” in cooperating with what they believed was a legal and presidentially authorized program and that they should not be punished through civil litigation for their roles, the official said.
As part of legislation on the security agency’s wiretapping authorities, the White House has been pushing hard for weeks to get immunity for the telecommunications companies in discussions with Senator John D. Rockefeller IV of West Virginia, the Democratic chairman of the Senate Intelligence Committee, and Senator Christopher S. Bond of Missouri, the ranking Republican. A tentative deal was first reported by The Washington Post.
The Intelligence Committee will begin reviewing the legislation at a closed session on Thursday.
The agreement between the Senate Intelligence Committee and the Bush administration would also include a greater role for the secret intelligence court in overseeing and approving methods of wiretapping used by the security agency, the official said.
But it is not clear whether this and other toughened civil liberties safeguards included in the agreement will go far enough to mollify senators on the Senator Judiciary Committee, who will also review the plan once the intelligence panel finishes its work.
Word of the deal came hours after House Republicans used a parliamentary maneuver to scuttle a vote on a measure that would have imposed new restrictions on the security agency’s eavesdropping powers.
At the start of the day, Democrats were confident that the measure would gain approval in the House despite a veto threat from President Bush. But after an afternoon of partisan sniping, Democratic leaders put off that vote because of a competing measure from Republicans that on its face asked lawmakers to declare where they stood on stopping Osama bin Laden from attacking the United States again.
The Republican measure declared that nothing in the broader bill should be construed as prohibiting intelligence officials from conducting the surveillance needed to prevent Mr. bin Laden or Al Qaeda “from attacking the United States.” Had it passed, it threatened to derail the Democratic measure altogether.
Democrats denounced the Republicans’ poison pill on Mr. bin Laden as a cynical political ploy and “a cheap shot.” But Democratic leaders realized that they were at risk of losing the votes of a contingent of more moderate Democrats who did not want to be left vulnerable for voting against a resolution to stop Al Qaeda, officials said. So the leaders pulled the measure, promising to take it up again next week once they could solidify support.
The Republican maneuver “would have killed the bill, and we couldn’t risk that,” said a senior Democratic aide, who spoke on condition of anonymity to discuss internal leadership deliberations. “We thought we’d be able to defeat it, but it became clear that we couldn’t.”
The episode revealed, once again, fault lines within the Democratic Party over how to tackle national security questions without appearing “soft” on terrorism in the face of Republican criticism.
Indeed, Republican leaders immediately praised their ability to block the N.S.A. measure as a sign of the Democrats’ weakness on that issue. Representative Heather A. Wilson, Republican of New Mexico, said Speaker Nancy Pelosi “underestimated the intelligence of the American people and the bipartisan majority in the Congress to understand what matters most: preventing another terrorist attack.”
Democrats, clearly thrown on the defensive, countered that Republicans were the ones playing politics with national security.
“Once again, House Republicans have chosen to engage in politics rather than substantively address the challenges that face the American people,” said Representative Steny H. Hoyer of Maryland, the House Democratic leader. “Once again, they have offered an amendment that, if passed, would have substantially delayed this important legislation which is designed to protect the American people by proposing language already provided in the bill.”
The Democratic measure would have sought to restore some of the restrictions on the security agency’s wiretapping powers that had been loosened under a temporary measure approved by Congress just before its August recess. The new bill would give the secret foreign intelligence court a greater oversight role in the agency’s interception of foreign-based communications into the United States, and it would provide for more reporting and accountability when the communications of Americans were involved.
The Bush administration has lobbied hard against the measure. One of its chief complaints is that the House bill would not provide immunity for telephone carriers as the Senate measure does.
A day after threatening to veto the House measure, Mr. Bush kept up the political pressure Wednesday in the hours before the bill was to come up for a vote. He said at a news conference that the Democratic plan would weaken national security, and he urged Congress instead to make permanent the measure it passed in August, which broadened the security agency’s authority to wiretap terrorism suspects without court oversight. That measure expires in February.
EDIT:
Some of you may find this interesting - "The truth about telecom amnesty" by Glenn Greenwald, about his interview with the EFF's lead counsel in the spying/eavesdropping trial.
http://www.salon.com/opinion/greenwa...sty/index.html
Spoiler Alert, click show to read:
Wednesday October 17, 2007 16:04 EST
The truth about telecom amnesty
Today I interviewed Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, alleging that AT&T violated multiple federal laws by providing (without warrants) unfettered access for the Bush administration to all telephone and Internet data concerning its customers. The Bush administration intervened in that lawsuit to argue that the "state secrets" doctrine compelled dismissal of the lawsuit, but the presiding judge, Bush 41-appointee Vaughn Walker, last year rejected that argument and ordered the case to proceed (Oral Argument on the administration's appeal of that ruling was heard by the 9th Circuit earlier this year).
The EFF/AT&T lawsuit -- based in part on the testimony and documentation of Mark Klein, a former AT&T employee -- will entail an investigation into the extent to which AT&T and other telecoms enabled the Bush administration to spy illegally on their customers. As of now, these telecom lawsuits are the best (arguably, the only real) hope for obtaining a judicial ruling as to whether these surveillance programs were illegal. Precisely for these reasons, the Bush administration is demanding "telecom amnesty" -- to bring a halt to EFF's lawsuit and thus ensure that no investigation of its spying activities on Americans ever occurs, and that no ruling is ever obtained as to whether it broke the law.
I found this interview extremely illuminating, and it reveals just how much misinformation is being disseminated by amnesty advocates. I will post the entire podcast and transcript when it is available, but wanted to post some key excerpts now:
* * * * *
GG: The lawsuit you originally brought was against only AT&T and not against the Bush administration or any government officials. Is that correct?
CC: Yes. We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.
So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.
As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.
So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
* * * * * *
Regarding the 9th Circuit appeal and what is at stake in these cases:
GG: If you were a Bush administration lawyer coming out of that Oral Argument, you would be far from confident that the 9th Circuit is going to dismiss the case?
CC: I think that's a fair characterization.
GG: And so, as we sit here now, with the Bush administration demanding amnesty for telecoms -- including AT&T and the other telecom defendants in these various lawsuits - there is a very real prospect, as of this moment, that the case you brought against these telecoms will go forward, and will entail an investigation into what these telecoms have been doing vis-a-vis surveillance of Americans -- is that true?
CC: I think that's true. . . . The courts will be able to look pretty deeply into what the phone companies have been doing. It may not be the case that the rest of us will know all of it. But what we will know at the end -- and what I think is critically important -- is whether it was legal or not.
GG: There will be a judicial ruling, assuming your case goes forward, as to whether or not the activities the telecoms engaged in, in concert with the Bush administration, actually broke the law?
CC: Yes - and that I think is tremendously important even if we don't end up knowing every nook and cranny of what the Government has been doing.
The FISA law really makes it illegal for the phone companies to give this information to the Government, and what the Government does with it afterwards isn't really relevant to our claim.
We have evidence of an NSA-controlled room in the Folsom Street AT&T facilities in San Francisco. We have evidence that AT&T diverted copies of everyone's Internet traffic into that room. And we know that there's very sophisticated equipment in that room that is capable of doing real-time analysis of the Internet traffic that is getting routed into there.
For most of our legal claims, that's enough to win, and we're done.
GG: Let's talk about those allegations. Your lawsuit, if it proceeded, would necesarily require an investigaiton into those allegations -- namely, into whether there was a secret room built, whether AT&T was providing unfettered access to the NSA, whether they were turning over this data. You would have to prove those allegations in order to prevail, right?
CC: Yes. . . . in that regard we already have AT&T internal documents that lay out the schematics of how this is happening and AT&T has authenticated these documents. They filed a motion with Judge Walker saying that those documents are their trade secrets and to say that, they had to say they were true. . . . The evidence we already presented and the fact that AT&T authenticated them takes us, if not all the way there, pretty darn close.
* * * * *
The impact of amnesty on these investigations:
GG: So, if Congress were to enact a law providing amnesty to telecoms -- something like the Bush administration is demanding, whereby the telecoms would receive retroactive amnesty -- that would essentially put a halt to your lawsuit?
CC: We would certainly argue that it didn't, but it's fair to say that it would put a pretty large hurdle in front of us for going forward. . . .
GG: But you would expect AT&T's lawyers and the telecom industry to argue that the amnesty they got from Congress does in fact bar those claims as well?
CC: Yes. Their goal is plainly to get rid of these litigations full stop. They don't want the courts to ever rule on whether this is legal or not. That's their goal. . . .
It's certainly the goal of the administration and the phone companies to ensure that there's never a decision about what's been going on is legal or not. The telecom cases are the last, best hope.
GG: In all of these cases that might result in an adjudication as to whether the surveillance programs were illegal, the Bush administration has been actively invovled in trying to block these cases from proceeding at all?
CC: That's right - they made the same "states secrets" argument as they made in our case in all these other cases as well.
GG: And having lost the "state secrets" argument in your case, and also in the ACLU case originally, they're now attempting to put a stop to these cases through the amnesty law that they're seeking?
CC: I think that's right. They're afraid. I think it's fair to say that they're worried they're not going to win with the rules of the game as they were set up at the time they started spying on everyone. They're running to Congress to try to change the rules of the game going forward, and trying to cover up what's happened in the past. And the question is - - is Congress going to go for this?
* * * * *
The passivity of Congress:
GG: The claims by Mark Klein about what AT&T was doing - do you know, has he ever testified before any Congressional hearings or spoken with any Congressional Committee as part of any investigations that they've done into these claims?
CC: I know he hasn't ever been asked to testify in front of Congress. I know he would be willing to testify, I know he'd be very eager to tell his story to Congress.
GG: Well that's why I'm asking. These are pretty extraordinary claims that he's making, and yet -- not only during the time that the Republicans were in control of the Congress, but even for the 9 months that Democrats were in control -- there have been no formal Congressional hearings, Committee investigations, in which they asked him to come and testify about what he knows. Is that right?
CC: I think that's right. And I think that as we've been talking to members of Congress about the immunity provision, as the amnesty provision has been moving to Congress, it's shocking to me that they don't know what Mr. Klein has told a federal judge.
It's been on Frontline, and it was on a whole bunch of things -- you've been talking about it -- but there's a sense that members of Congress don't understand the kind of wholesale dragnet surveillance that Mr. Klein's evidence demonstrates . . . It's undisputed, this evidence. They have never said that Mr. Klein is lying or that the documents are phony.
To the contrary, AT&T itself said they were all true and were trying to argue that they were their trade secrets and we should have to give them all back. It's undisputed evidence and it is surprising that Congressional members still don't know about it and haven't asked Mr. Klein to come tell them himself.
* * * * * * *
Claims of telecoms' "good faith":
GG: One of the arguments that the telecom industry is making, and that advocates of telecom immunity or amnesty are making, is that these telecoms acted in good faith when they did what they did, and so it's unfair to punish these companies -- even if they technically broke the law -- because they were acting in good faith, acting as what the Washington Post Editorial Page described as good "patriotic corporate citizens" trying to protect the country. I have two questions about that:
(1) is it true that under the law, if they can prove they acted in good faith, then at least for the statutory claims, there won't be any liability?; and,
(2) aren't those claims, those arguments, that they're making now [about their supposed "good faith"] ones that they made before Judge Walker, that he rejected, when he refused to dismiss the case against them?
CC: Yes and yes. To answer your first question: the FISA law already has very broad immunities for the telecoms, and if it was the case that they were acting in good faith with an honest belief that what they were being asked to do was legal, then they would already have immunity, and they don't need an additional immunity from Congress for that.
And it's also the case that they made all these arguments to Judge Walker and Judge Walker's decision on this addresses those arguments very directly -- he said no reasonable phone company in the position of AT&T could have thought that what they were being asked to do was legal. It is not the case that this phone company could have believed that the wholesale surveillance of millions of its customers for five years, six years and counting, could be legal under the law.
Remember, these phone companies are very sophisticated about these FISA laws and the other laws that explain how and when they can cooperate with law enforcement. These aren't some rouges. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone.
But even if they didn't, I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"
The answer to that has to be "no." I don't think you even need a law degree to figure that one out.
* * * * * * *
The motives for the telecom lawsuits:
GG: John Boehner, the House Minority Leader, was on Fox News on Sunday arguing for telecom immunity, and this is one of the things he said in explaining why he believed in amnesty: "I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies."
Is that an accurate description of your lawsuit and your organization?
CC: No, we are not plaintiff's attorneys. . . . He's welcome to come and visit our offices and if he still thinks that we're rich plaintiffs' attorneys after he's visited our little tiny Mission Street offices, then I have a bridge to sell him. We're a small, struggling non-profit with a very tiny budget - and we're doing this because we're committed to protecting people's privacy in the digital age.
GG: I don't know the salaries of EFF lawyers and I'm not asking that, but I assume it's true that there are all kinds of private sector opportunities and large corporate law firms in San Francisco where lawyers working in those places are making a lot more money, and if EFF lawyers were motivated by the desire for profit -- as Mr. Bohener dishonestly suggested -- there are a lot of other jobs that you could get that would pay a lot more money.
CC: Oh yeah, absolutely. And in fact, our lawyers are just the opposite. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big paycuts to join us, because they wanted to do personally fulfilling work and feel like they were making the world a better place.
What I tell young lawyers who come to me and say: "I really want to work for EFF - you have such great lawyers," I say: "take your current paycheck, rip it in three pieces, take any third, and that's about what you'll get working for EFF." The lawyers who work for EFF are making some of the biggest contributions to this organization, because they are making far less than they could on the open market in exchange for being able to work on things they believe in every day.
-- Glenn Greenwald
