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Bush Again Demands Telecom Immunity

In his radio address today, President George W. Bush again called for retroactive legal immunity from class action lawsuits initiated against telecommunication companies that participated in the government's wiretapping program without court-ordered warrants.

It follows many other recent statements by the Bush Administration and its supporters in Congress who are trying to push through a legislative measure that removes a citizen's right to sue, as part of the law overseeing the government's surveillance of citizens and foreigners.

Critics have called Mr. Bush's tone and choice of words "fear-mongering," if not merely wrong, when he characterizes the importance of retroactive immunity for past lawbreaking in being able to protect America from future terrorist threats.

The immunity provision currently being fought over (and which will be back in the spotlight when House members return this week) is part of the update to the Foreign Intelligence Surveillance Act (or FISA), a law first enacted in 1978 which sets the conditions under which the government can engage in surveillance of citizens and non-citizens.

Under FISA, intelligence agencies must obtain warrants from a special court when setting up a wiretap. There are procedures in place, such as a 3-day window in which to get approval after the fact if time is of the essence. There are also protections when communications involve American citizens inside or outside of the U.S.

After it was revealed in December 2005 that the Bush administration had set up a secret surveillance program outside of the FISA court, and had engaged the cooperation of some telecom companies in tapping into and copying all telephone and Internet communications of every American beginning in 2001, discussions started on how to move forward in bolstering the legal protections afforded by FISA.

In addition, several dozen citizen lawsuits were launched to seek discovery against the telecoms' role in the wiretaps, which were run outside of the protections of the Constitution's Fourth Amendment.

Congress is split on providing immunity to the telecoms from civil liability (which would shut down the court cases, thus preventing discovery about the spy program's parameters); House and Senate versions differ and must be debated and agreed to before sending a bill to the White House.

President Bush has made it known repeatedly that, while he demands an update to FISA in order to ensure national security, he also will not sign any law that does not grant protection from lawsuits to the telecoms.

Mr. Bush's veto threats, the war of words, and the Congressional Republicans' refusal to allow an extension of current law (which expired earlier this month) meant that Congress left for a recess without voting on the new surveillance bill.

Mr. Bush laid the blame for the lapse on the doorstep of Capitol Hill: "Congress' failure to pass this legislation was irresponsible," he said in his radio address today, implying that our nation will be "increasingly vulnerable to attack."

"House leaders are blocking this legislation, and the reason can be summed up in three words: class action lawsuits."

"They cannot have it both ways," leading Congressional Democrats responded. "If it is true that the expiration of the [surveillance law] has caused gaps in intelligence, then it was irresponsible for the president and Congressional Republicans to openly oppose an extension of the law."

But how do class action lawsuits factor into intelligence gathering today, or tomorrow?

The Refusal To Cooperate

Mr. Bush says that, if telecoms do not get liability protection for wiretapping conducted in the past, they will refuse to do so in the future. "Without protection from lawsuits, private companies will be increasingly unwilling to take the risk [emphasis added] of helping us with vital intelligence activities," he said. "In other words, the House's refusal to act is undermining our ability to get cooperation from private companies. And that undermines our efforts to protect us from terrorist attack."

In a letter to Congress Friday, National Intelligence Director Mike McConnell and Attorney General Michael Mukasey claim the lack of a new law has cost the government some intelligence information over the past week because some private companies have delayed or refused compliance with requests to initiate wiretaps against people covered by orders issued under the expired law.

They said most companies are cooperating, but some have suggested they will stop if "the uncertainty [over immunity] persists."

McConnell has described the companies' stance as, "You can't protect me. Why should I help you?"

Such comments tend to color the White House's characterization of those companies' past warrantless wiretap efforts as patriotic ("They did the right thing").

Senior administration officials refused Friday to specify which companies, or how many, were not cooperating. They said the companies believe the law's expiration means no changes can be made in existing wiretaps, which can last for as long as a year.

FISA law compels phone companies to switch on a wiretap when presented with a warrant, although some claim a technicality in the currently expired law (the Protect America Act) does away with that.

While McConnell told the Associated Press, "There is no longer a way to compel the private sector to help us," House Majority Leader Steny Hoyer, a Democrat, said that even when the law expires, existing wiretapping orders would continue to protect telecom companies.

It is also true that under the law telecoms would be safe from any lawsuits related to current or future wiretaps that invaded a citizen's privacy if they were engaged under a court-ordered warrant - it would be legal. The only wiretaps the telecoms could be liable for in civil cases would be illegal wiretaps - which the administration, under the law, couldn't legally pursue anyway.

"Misguided Notion" Of Protecting American Rights

Concerns about constitutional breaches in citizens' rights have been downplayed by the administration, suggesting either that the information retrieved from warrantless wiretaps was valuable enough to warrant skirting the law, or that people in the Information Age should not expect the kinds of privacy protections our parents and grandparents expected.

In October, Donald Kerr, the principal deputy director of national intelligence, said, "Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it's not for us to inflict one-size-fits-all.

"I think all of us have to really take stock of what we already are willing to give up, in terms of anonymity."

White House supporters in Congress are pushing the envelope even further, going so far as to suggest that those who keep an immunity provision from being passed might be to blame should another attack occur.

Rep. Dana Rohrabacher, a Southern California Republican, told the Orange County Register, "Just think about shutting down the interceptions because of some misplaced notion about protecting American rights and we end up with families being murdered at Disneyland because some messages weren't intercepted."

But there is that pesky Fourth Amendment, which clearly states,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Room 641A at an AT&T facility in San Francisco, through which phone calls, e-mail and Internet traffic were allegedly, indiscriminantly siphoned to be copied by the government, doesn't quite fit.

It's All About Plaintiff's Lawyers

The president said, "The Senate bill would prevent plaintiffs' attorneys from suing companies believed to have helped defend America after the 9/11 attacks. More than 40 of these lawsuits have been filed, seeking hundreds of billions of dollars in damages from these companies."

While damages are being sought based upon violations of such laws as FISA, the Wiretap Act, the Communications Act, and the Stored Communications Act, the lawsuits (such as Hepting v. AT&T) also seek access to classified information about the spying program: Who authorized it, who enabled it, and how the information was used.

To those who intimate that the administration's surveillance was used for anything other than tracking suspected al Qaeda members (such as for political purposes), the value of this case goes beyond any financial remuneration.

Bob Edgar, president and CEO of Common Cause, said, "Innocent Americans who have had their rights violated by the telecoms deserve their day in court. If these companies did nothing wrong, then they have nothing to fear."

Legal scholars also point out that the FISA court has approved virtually every single wiretap request given it over the past three decades, hence the desire to know the reasons for the Bush administration to circumvent the court in order to spy on Americans, since its argument that FISA stands in the way of intelligence gathering is weak.

"Punishing" Patriots

In remarks before the House Judiciary Committee, Attorney General Mike Mukasey said:

"[T]his legislation protects telecommunications companies now under legal assault because they are believed to have responded to the Government's call for assistance in the aftermath of September 11."
The head of the Justice Department, the leading criminal enforcement officer in the United States, equated a lawsuit charging a defendant with breaking the law as a "legal assault," as if the plaintiffs were the assailants.

Mr. Bush said today, "It is unfair and unjust to threaten these companies with financial ruin only because they are believed to have done the right thing and helped their country."

Doing the "right thing" might not have been the only reason why some telecoms agreed to switch on wiretaps that were not legal - and telecoms could not argue that they believed the wiretaps were legal, because at least one company, Qwest, refused to participate because it recognized the wiretaps were illegal. It was later divulged in court documents that Qwest's refusal cost it lucrative government contracts.

Also unmentioned by immunity backers is a recent report that FBI wiretaps were switched off by the phone companies because the Justice Department failed to pay their phone bills.

The Mixed Argument

Mirroring his comments last week that terrorists around the world are planning actions that would make 9/11 "pale by comparison," President Bush said we must never forget that "somewhere in the world, at this very moment, terrorists are planning the next attack on America." Which is likely true.

Certainly no one can argue that terrorists are not planning attacks. But the president pushes this fact forward to imply that that creates a choice between preserving national security and maintaining constitutional protections, like wronged parties being able to sue.

Mr. Bush made it a point to focus his attention not on citizens, but on their lawyers:

"Members of the House have a choice to make: They can empower the trial bar - or they can empower the intelligence community. They can help class action trial lawyers sue for billions of dollars - or they can help our intelligence officials protect millions of lives. They can put our national security in the hands of plaintiffs' lawyers - or they can entrust it to the men and women of our government who work day and night to keep us safe."
Trial lawyers are almost as easy a target as terrorists.

Rep. John Conyers, D-Michigan, rejected the notion that intelligence gathering has been compromised by the fight over immunity. In the Democratic Party's response to Mr. Bush's radio address today, Conyers said, "There should be no question in anyone's mind that the United States intelligence agencies have the legal ability to take all actions necessary to protect the security of the American people. For anyone to suggest otherwise is irresponsible and totally inaccurate."

Terror experts, advocates for civil liberties, and constitutional scholars point out that holding lawbreakers accountable does not mean that a court case looking into past offenses will in any way inhibit the intelligence community's ability to track current or future communications between terror suspects (although some government officials claim that "state secrets" about the country's intelligence gathering will be revealed, and thus compromised, in an open court).

But while Congress debates future law, the courts remain the only place where the spy program's past actions can be documented and clarified - if the courts are allowed to.

But the road to legal clarity is not easy, as witness this week's Supreme Court rejection of an appeal by the ACLU over its lawsuit aimed at declaring the National Security Agency's wiretap program illegal. The Sixth Circuit Court had earlier overturned a summary judgment in favor of the ACLU on narrow procedural grounds related to their standing (they could not demand evidence that they were actually spied upon, because of the State Secrets Doctrine), without actually addressing the legality of the government's surveillance program.

The Supreme Court refused to answer that question, and let the case die.

By producer David Morgan.

Just hours after having chided Congress for failing to pass a new FISA law, and suggesting that telecoms were refusing to submit to government requests for wiretaps, the administration backtracked Saturday.

In a statement reported on by the Los Angeles Times, Mukasey and McConnell said that all wiretaps were continuing, and that intelligence agencies were getting all the information they requested, even without the new law, "at least for now."

A Democratic official called the new message "serious backpedaling," saying that the adminstration has been saying "that the sky is falling, and the sky is not falling."