Administration Succeeds In Delaying The Release Of Telco Lobbying On Immunity

from the transparency-is-good-in-theory... dept

So much for that new Obama administration "transparency" claim, huh? After three unsuccessful attempts at stalling a court order to release documents concerning who lobbied for telco immunity in warrantless wiretapping lawsuits, the administration has succeeded in its fourth attempt, delaying the release of the documents at least until next year. Of course, by the time this is decided, it should be long after Congress is done debating the whole warrantless wiretapping issue... so that's convenient. I'm still trying to figure out who or what the administration is trying to shield. It seems pretty obvious that the telcos would lobby for immunity, so that's not revealing much. So what's so important to keep secret?

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Gov't Trying Everything Possible Not To Give Up Telco Immunity Lobbying Records

from the not-so-transparent dept

Remember last month, when a court ordered the Obama administration to turn over records of who lobbied the administration for retroactive immunity for telcos concerning the warrantless wiretapping program? Yeah... well, it turns out the Obama administration isn't so keen on actually living up to that. First, it asked for a 60 day delay, so it could think about appealing (i.e., "give us time to stall, since telco immunity is being debated in Congress now, and we don't want this info out until afterwards"). However, the court said no, and said to hand over the info. And... yet again, the administration has now filed an emergency motion asking for 30 days to consider an appeal. It's difficult to see what this is other than a pure stall tactic. If the court already rejected the 60 day delay, why would it now turn around and grant a 30 day delay. All this is really serving to do is make people a lot more suspicious about what those records might show.

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Gov't Needs To Reveal Who Lobbied For Telco Immunity On Warrantless Wiretaps

from the this-shouldn't-be-a-surprise dept

The EFF has announced that a judge has sided with them in saying the federal government must reveal the records of who lobbied to get telco immunity from any warrantless wiretapping charges in last year's FISA bill. There is simply no credible explanation for granting telco immunity except to cover up illegal activity. It's a clear "get out of jail free" card. Still, I doubt that the lobbying records will turn up very much surprising. I'm sure the big telcos lobbied for it, as you would have expected.

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How Do You Prove You Were Warrantlessly Wiretapped If It's A Secret?

from the the-amazing-legal-obstacle-course dept

As we continue to debate the question of telco immunity, there's a separate, but related legal issue that's worth paying attention to as well: the question of who can actually sue about having their rights abused by supposedly warrantless wiretaps. Earlier this year, the Supreme Court ruled that various groups such as the ACLU couldn't sue because they had no "standing" (i.e., proof that they were impacted by the warrantless wiretaps). It's a bit convoluted when you think about it: there's no way to determine if illegal spying took place because the only way you could get the evidence would be to first prove you have the evidence that it took place. But if you think that's twisted, it gets even more bizarre.

It turns out that in one related case, the government accidentally sent over proof that it used a warrantless wiretap to monitor a certain group. Thus, that group can actually show it has standing... sorta. One of the lawyers involved in pushing just such a lawsuit forward has a stunning tale explaining the amazing obstacle course he had to traverse to actually have this lawsuit move forward (and it's not over yet). Basically, the government claims the information in the document is still secret, even though it gave it out, and some of the details have been reported on the news (in business contexts once info is out, it's no longer secret -- apparently, not so with the government).

Where things get really bizarre, though, is in how the lawyers on this case can actually deal with this evidence it has. Basically, they had to destroy all copies they had of the evidence in question, and can sort of obliquely refer to it from memory in secret filings that are written under the watchful eye of the Justice Department, officially to make sure that the "classified info" remains classified. Even better, the lawyers had to respond to a secret filing from the Justice Department that the lawyers weren't even allowed to see. The case is far from over -- as the latest ruling basically set up another ridiculous tightrope for the lawyers to walk -- basically saying that they can't use the evidence in the document because it would prove their case. Instead, they first have to prove it without the document, and then if they do that, they can use the document (after it's basically no longer necessary). And there's all sorts of side amusements, such as reading about how the Justice Department tries to destroy the lawyer's computer to make sure there's no secret documents on there (it's like a scene from a bad comedy, where they discover that simply banging a hard drive on a table isn't an effective way to damage it). And, there's also the bit where the Justice Department refuses to let one lawyer take part in the drafting of the secret filing because they just don't like him.

This has gone way beyond protecting state secrets or providing security and protection to American Citizens. As you read the details, it's quite clear this is about doing whatever possible to hide what was almost certainly an illegal move by the administration. If telecom immunity is granted, then this particular case, Al Haramain v. Bush, would basically be the only case left that looks into the legality of warrantless wiretapping. Say what you want about the importance of protecting US citizens, the American Constitution set up a system of checks and balances for a very good reason: so no single group has enough power to make the rules itself. This whole thing shows how the executive branch is trying to guarantee there are no checks or balances on some of its activities. That's a very scary precedent and on that anyone -- no matter what your political persuasion -- should be against.

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Bush Administration Admits That Telco Immunity More Important Than Increased Spying Power

from the doesn't-that-say-something? dept

While we had thought that Congress was going to easily roll over on the so-called (but not really) compromise bill on new surveillance powers that included telco immunity from potentially illegal acts committed in the past few years, there has been some pushback in the Senate, where the bill is finally about to come up for vote. Some Senators have put together an amendment stripping telco immunity from the bill, but leaving the increased surveillance powers in place. Amazingly, the Bush Administration has now said that if telco immunity is stripped from the bill, Bush will veto the bill, even if everything else is identical. In other words, all the talk you hear from politicians about how this bill is necessary to protect Americans is hogwash. If it were true, then it is simply unforgivable to veto the bill without telco immunity.

What has been made abundantly clear by this statement is that the US government does not need these extended surveillance powers at all. Its existing surveillance powers are quite sufficient. The entire purpose of this bill then, has absolutely nothing to do with security, and everything to do with making sure that the telcos (and the administration) do not have to defend their potentially illegal actions in court. If that were not the case, then the President would still be willing to approve the bill without telco immunity.

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Perhaps The Senate Won't Roll Over On Telecom Immunity

from the could-it-be? dept

Maybe, just maybe, there are a few people in the Senate who actually won't just roll over and hand the President a "get out of jail free" card to give to telcos who carried out the almost certainly illegal "warrantless wiretapping" program. While last week reports suggested that the new "compromise" bill (which basically does grant immunity, as well as expand the warrantless wiretapping program) would breeze through both the House and the Senate, there may actually be a few politicians with a backbone fighting to stop it. It did cruise through the House relatively easily, but now Senators Dodd and Feingold have announced that they'll filibuster against immunity, and Senate Majority Leader Harry Reid (who had earlier suggested he supported the faux "compromise") says he'll support the filibuster.

What's not clear is whether or not there will really be enough support to get rid of telecom immunity. Early on it seemed like there was plenty of support for the "compromise" from those who thought it was best to get past that and focus on "other battles" instead. Also, there's the issue of corruption campaign funding. Jim Harper points to an analysis of the correlation between telco immunity flip-floppers in the House and donations from telcos. Take a guess what the analysis shows. Yup, those who switched positions received nearly twice as much in contributions from the big telcos. Funny how that works. And, of course, rest assured that the same telcos donate plenty to Senate campaigns as well.

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Our Congress Has Failed Us: Gives In On Telecom Immunity

from the no-checks,-no-balances dept

We mentioned the rumored "compromise" bill concerning telecom immunity earlier this week, and now it appears that leaders of both the House and the Senate have agreed to wording in the bill which will be brought to the floor today. From the sound of it, it's exactly what we feared: Congress has effectively given in to the administration, allowing it to grant immunity to any telco. Apparently, all that talk about not allowing the worst of this bill to go through was just talk. It's difficult to know where to begin in reviewing this "deal." It's hardly a compromise -- it's a get out of jail free card.

To summarize: it appears quite likely that various telcos broke a very clear law in providing wiretaps to the government without a warrant (as required under FISA). Despite what you might hear, this has nothing to do with emergency wiretaps where there wasn't time to go the warrants. Under existing law, in such cases, it's possible to get the wiretap and get the warrant within a few days. However, in many cases, it appears no warrant was ever sought. The fact that the telcos approved these wiretaps is almost certainly against the law -- and it seems that it should obviously be tried in a court of law to determine that specifically.

However, under this new law, Congress has basically given the President (who ordered the wiretaps in the first place, and doesn't want these trials to go forward since they may reveal that he broke the law too) "get out of jail free" cards he can hand to each telco, saying that since he told them that the wiretaps were legal, the lawsuits no longer can proceed. Basically, this puts the President above the law, lets him avoid trials that might prove that his activities broke the law and to reward telcos who broke the law at his command.

Even worse, the bill basically grants the administration the right to keep on spying without getting warrants. Intelligence agencies will be able to demand various communications providers hand over communications without court approval and without naming the target, so long as they claim that the communications are "reasonably believed to involve a non-American who is outside the country." Seems rather wide open for abuse doesn't it?

This whole thing is fairly stunning, considering that it's an opposition Congress facing off against a weak administration. Yet Congress basically gave the President exactly what he wanted, and made a mockery of the checks and balances our government was supposed to include. This is allowing a President to say the law is whatever he says is the law, while destroying basic due process and civil liberties along the way.

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Warrantless Wiretap 'Compromise' Really Just A Get Out Of Jail Free Card From The President

from the that-doesn't-seem-right dept

We've been following the ridiculous attempts by the administration to protect telcos who most likely broke the law in supplying warrantless wiretaps by trying to get "immunity" included in the new FISA bill. As we've pointed out, this makes absolutely no sense. If the administration or the telcos (or both) broke the law -- then that issue should be explored. Granting anyone immunity from even being tried for breaking the law doesn't seem appropriate. If there were special circumstances that explain why the telcos or the administration broke the law, why not at least have them come out in court rather than sweeping them all under the rug?

Unfortunately, now there's word coming out that a new "compromise" bill is likely to be approved. However, the details suggest this isn't a compromise. This is exactly what the administration wanted, and which some members of Congress have been fighting against. Basically, it would let the President say that he assured the telcos that their actions were legal -- and that would grant them immunity. In other words, this law would basically say that as long as the President tells you something is legal, it's automatically legal, and you can't get in trouble for doing it. That's not how the law is supposed to work -- and is a huge abuse of power. There's simply no way Congress should let this through, as it sets an awful precedent.

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Congress Thinking About 'Compromise' That Would Move Telco Immunity Questions To Secret Court

from the what's-so-secret-here? dept

There's been an ongoing battle in Congress over whether or not telcos that helped the gov't with warrantless wiretaps should get retroactive immunity for their actions. No one has given any good reason why companies should be granted immunity for any sort of illegal actions, and there are plenty of reasons why they should not. The fact that the administration "asked" them to administer the wiretaps is no excuse. The president is not above the law. Basically, the only reason to demand immunity is because it's clear that someone (or, more likely, multiple people and companies) broke the law.

The latest move in this process is a so-called "compromise" bill that would move these disputes into a secret court, who could then dismiss the lawsuits without giving any explanation whatsoever. And, yet, no one has explained why these trials should happen in secret either. Either the companies followed the procedures that are clearly stated in the law, or they did not. You can determine if they followed the procedure without giving up state secrets. This whole thing seems to be involving an awful lot of smoke and mirrors coming out of DC, with people making all sorts of ridiculous statements about "security" and "terrorism." Those statements are all meaningless distractions. There is a clear legal procedure for wiretapping that even allows for going back after the fact to get approval. There is no excuse that the process was too cumbersome or slow, because of that ability to go back. The question here has nothing to do with security and safety. It has to do with whether or not the legal process was followed -- and it's hard to see why that should remain secret.

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As Expected, Republicans Push To Get Telcos Off The Hook For Illegal Activities

from the who-woulda-thunk-it dept

Back in February, we broke the story that some Republican Congressional Representatives were looking to circulate a discharge petition to force a vote on the FISA bill that would grant telcos retroactive immunity for any illegal activity having to do with wiretap activities. And, in fact, that's exactly what happened. Earlier this week, a group of Republicans started circulating just such a petition. This is an extremely rare move. A discharge petition hasn't been used successfully since 2002. However, the reasoning behind the supporters of this discharge petition is highly suspect and deserves to be examined. Rep. Roy Blunt stated:

"More than 66 days have passed since House Democrats allowed a key piece of terrorist surveillance legislation to expire--not because they had concerns with the bill, but because they were seemingly more concerned that not enough trial lawyers would be able to file enough expensive and frivolous lawsuits against U.S. telecom firms."

That's both incorrect and misleading at the same time. First of all, there were concerns with the bill: the concerns about giving telcos immunity for potentially illegal activities. As we've pointed out, there are really only three potential reasons for wanting immunity, and they certainly have nothing to do with filing frivolous lawsuits. If this was about frivolous lawsuits, immunity wouldn't be needed -- because the cases would get thrown out. The only real reason to push for immunity is because it's known that the telcos and/or the administration acted illegally. In such a case, immunity obviously shouldn't be allowed. No one has yet given a decent reason for immunity, and the statement here to back up the discharge petition is incredibly disingenuous. Hopefully, a majority of Congressional representatives will realize that and reject the petition.

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House Says No To Retroactive Immunity

from the about-time dept

Despite a fear-mongering campaign filled with outright lies and fabrications, it appears that the Democrats in the House are actually asking the right questions about why we should grant retroactive immunity to telcos for potentially breaking the law in helping give the government access to information. They approved the version of the bill that they announced earlier this week, which would not get the telcos off the hook if they broke the law over the past few years.

Throughout this whole process, the one thing that has never been explained clearly is why it would possibly make sense to give the telcos immunity for breaking the law. There are perfectly legal means for the government to go out and request the information they wanted. To not go through those legal means makes very little sense, unless the government knew that it would not get approval. To anyone who claims that the government "needed" to do this, can you explain why they would "need" to do this without following the legally prescribed paths to do so? The US government is not free to do whatever it wants without oversight. That's why we set up a government with three separate branches to have oversight of each other. Otherwise, the system can and will be abused. What's happening here is that there appears to be quite a bit of evidence that the system was abused, and the White House (and the members of Congress who agree with the White House) are saying that we should ignore that. That seems problematic.

Luckily, (and, to be honest, surprisingly), it appears that some in Congress recognize this point, and are stating it quite explicitly. The EFF highlights the comments of Nancy Pelosi:

"Why would the Administration oppose a judicial determination of whether the companies already have immunity? There are at least three explanations:

First, the President knows that it was the Administration's incompetence in failing to follow the procedures in statute that prevented immunity from being conveyed -- that's one possibility. They simply didn't do it right.

Second, the Administration's legal argument that the surveillance requests were lawfully authorized was wrong; or [third,] public reports that the surveillance activities undertaken by the companies went far beyond anything about which any Member of Congress was notified, as is required by the law.

None of these alternatives is attractive but they clearly demonstrate why the Administration's insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies; it has always been about protecting the Administration."

Of course, this is not nearly over yet. The Senate still needs to vote on legislation and the President would still need to approve it -- and he's made it clear that he'll veto any bill that doesn't include immunity. For all his complaints that not having a bill approved would make the US less safe, it would appear that it's his demand for retroactive immunity that is actually holding up the bill's passage. There is nothing in the current bill that makes the country any less safe. The only thing holding it up is a desire to brush aside questions about whether or not earlier activities broke the law.

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House Dems Release Draft of 'Compromise' Surveillance Bill

from the just-say-no-to-telecom-immunity dept

Democrats in the House of Representatives have finally released a preliminary draft of compromise legislation to amend the Foreign Intelligence Surveillance Act. For civil libertarians who had resigned themselves to one more capitulation to White House demands, the bill will come as a relief: There is not a lot of compromise in this "compromise bill." Unsurprisingly, that means that administration officials, and the House Republican leadership, regard the bill as unacceptable.

On the hot-button question of retroactive immunity for telecoms alleged to have participated in warrantless National Security Agency wiretaps, the draft bill would shunt suits against the companies to a federal court empowered to hear classified evidence. This may come as welcome news to the telecoms, which had complained that the exculpatory evidence they need to defend themselves consists largely of state secrets. It will probably be less appealing to the Bush administration, which has resisted outside scrutiny of the surveillance activities authorized by the president after 9/11. For similar reasons, the White House is likely to oppose a provision in the draft bill creating a bipartisan commission, endowed with subpoena powers, to investigate government wiretaps from 2001–2007.

The bill's approach to executive branch wiretaps is in many respects similar to that of the RESTORE Act passed by the House last year, as a side-by-side comparison chart makes clear. The administration is thrown a few bones: Unlike the RESTORE Act, this legislation covers surveillance serving any foreign intelligence purpose, rather than only those related to terrorism or national security. It also expands, from 72 hours to one week, the time allowed for "emergency" wiretaps implemented in advance of court authorization. But on the whole, it embeds significantly more stringent civil liberties safeguards than the White House–approved legislation passed by the Senate. Instead of changing the definition legal of "foreign intelligence" -- an important term appearing in a variety of complex statutes -- the bill carves out a special exemption, allowing intelligence agencies to acquire communications between specific overseas targets and person in the United States. The bill also requires the development of guidelines to prevent "reverse targeting" of Americans, to ensure that lenient FISA procedures cannot be used to circumvent the more stringent requirements that apply to ordinary criminal investigations. The FISA court must approve surveillance procedures in advance, and both the procedures and agencies' compliance with "minimization" guidelines designed to limit the unnecessary retention of Americans' communications are subject to review by the court and a independent Inspector General. It also incorporate's the Senate bill's "Wyden Amendment," providing protection for Americans abroad. Finally, the law is scheduled to sunset in two years, rather than the Senate bill's six.

Whether House Democrats will be able to succeed in pushing this legislation through is unclear. Senate Intelligence Committee Chair Jay Rockefeller (D-WV), whose support will be critical in getting any law passed, has said that "considerable work remains" before he will be prepared to support proposed reforms. Despite its similarity to the stalled RESTORE Act, though, House leaders may have pulled off a bit of clever political jujitsu by offering new legislation. Republicans had fought hard to frame the debate as a question of inaction, on the one hand, or passage of the Senate bill, on the other. The burden, Democrats presumably hope, will now shift to Republicans to explain why they cannot countenance the passage of "vital" legislation with a few extra safeguards and checks.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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Watching FISA Fizzle

from the the-political-circus dept

Sen. Chris Dodd (D-CT) appears to be the blogosphere's favorite son this week, with calls for him to replace Harry Reid (D-NV) as Majority Leader in the wake of his successful attempt to block passage of the White House–approved version of reforms to the Foreign Intelligence Surveillance Act. While perhaps most controversial for a provision granting retroactive immunity from civil suit to telecom providers who participated in the National Security Agency's program of extrajudicial wiretaps, the legislation was also loathed by civil libertarians for granting the Attorney General broad, minimally supervised power to eavesdrop on Americans' communications with foreign intelligence targets. Dodd, for his part, returns the love, thanking the netroots for making it all possible on—where else?—YouTube.

Reid, meanwhile, has said he'll move to extend the stopgap Protect America Act passed in August rather than attempt to reach a vote on a more permanent replacement in the brief time between the start of the next Senate session in mid-January and the law's scheduled sunset on February 1. This holds out at least some hope that the next serious overhaul of American intel law will, for once, not be rushed through Congress in a quasi-panic.

Major media reactions have been more or less predictable across the board, and yet I still managed to be a bit surprised by an utterly unsurprising Wall Street Journal editorial, just for the sheer chutzpah displayed in recycling talking points so far past their sell-by date:

FISA allows the government to tap communications outside the U.S. without judicial approval. But these days, many international calls pass through America en route from one international point to another. Unless Congress acts by February 1, when a temporary law expires, intelligence agents will be unable to monitor these calls without asking a judge for permission.

That may be fine with some Democrats, who have always been more comfortable treating terrorism as a law-enforcement problem rather than a real war. But it's a tough political sell to say that America should respect the "civil liberties" of al Qaeda terrorists overseas.

As I need not tell Techdirt readers, this is either clueless or disingenuous. First, and most obviously, because all of the proposed amendments to FISA allow surveillance of foreign-to-foreign traffic routed through U.S. switches, and none of them evince the slightest concern for "the 'civil liberties of al Qaeda terrorists overseas." Second (and only slightly less obviously if you're moderately familiar with FISA), because the now-familiar narrative about why reform is needed has been transparently bollocks from the get go. The probability that the FISA Court handed down a ruling simply applying a warrant requirement to domestically intercepted foreign wire traffic is, to a first approximation, zero. If you've got a few minutes and a healthy sense of Schadenfreude, watch the contortions this poor Congressional Research Service attorney goes through (pdf) trying to find some way some such implication could conceivably be read into the statute's language. Then contemplate that the administration does not appear to have sought an appeal of this putatively crippling ruling. We can't know the real substance of the Court's problems with the way wiretaps were being handled, but we can be relatively certain of two things: They are more complicated than has been publicly suggested, and they provided a convenient means of persuading a cowed Congress to loose the judicial fetters entirely.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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If You're A Telco Lobbyist Convincing The Gov't To Grant Immunity, What Would You Say?

from the immune-response dept

Thanks to a court ruling issued Wednesday [PDF], the Director of National Intelligence now has less than two weeks to turn over to the Electronic Frontier Foundation some 300 pages worth of documents concerning the lobbying efforts of the telecom industry, which is seeking immunity from suits related to its role in extralegal surveillance. (EFF has itself brought just such a lawsuit.) The ruling found that the government has not provided any compelling explanation for its foot-dragging response to EFF's Freedom of Information Act request for the documents, and that "the public interest will be served by expedited release of the requested records" before the passage of legislation that could provide retroactive immunity. Since an industry lobbying to protect itself from potentially costly lawsuits is hardly surprising, the attempt to delay disclosure here actually leaves me more curious than I otherwise might be about the contents of the documents. Less interesting than the mere facts about who spoke with whom may be the rationale for amnesty offered by the telecoms: Since they should prevail on the merits if they acted within the law, it may be instructive to see precisely what they are worried about.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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Senate Punts On Telecom Immunity

from the get-out-of-jail-free dept

Last night, the Senate Judiciary Committee approved wiretapping legislation. There's been quite a bit of confusion around the web about how the committee handled the most contentious issue: whether to grant telecom companies retroactive blanket immunity for violating their customers' privacy. It appears that after an effort to strip out the immunity language failed, the committee only referred part of the legislation out of committee, leaving the immunity provisions in limbo. The net effect will be to leave the issue to be decided by the full Senate, where we can be sure someone will offer an blanket immunity amendment. Sen. Specter, who is the leading Republican on the committee and has occasionally been critical of the Bush administration's civil liberties record, is apparently intending to offer a "compromise" that would have the government take the place of AT&T and Verizon in the privacy lawsuits now pending against them. Frankly, I have trouble seeing how this is a compromise. The problem with granting immunity liability is that it undermines the whole point of the fines, which is to give the companies an incentive to obey the law. If the government takes the telecom companies' place in the lawsuit, that saves them from paying any real penalty for breaking the law. As a result, they'll have no incentive to say no next time the executive branch asks them to do something illegal. If Congress wants the telecom industry to take the laws it writes seriously, then it has to insist that companies pay the penalty when they break them. Meanwhile, the House approved wiretapping legislation without an immunity clause. And the White House, for its part, has vowed to veto any legislation that doesn't include a get-out-of-jail-free card for the AT&T and Verizon. So there will almost certainly be a showdown, either between the House and the Senate, or between Congress and the White House.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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