With debate limited to an hour, Democrats in the House of Representatives capitulated to White House threats of a veto and passed a FISA reauthorization bill that includes retroactive immunity from lawsuits for telecommunication firms that honored the warrantless wiretap request.
Readers of this column overwhelmingly (80%) opposed the retroactive immunity provision.
A total of 105 Democrats joined 188 Republicans to pass (70%) the 114-page FISA Reauthorization, HR6304: 293 Yea, 129 Nay, 13 Not Voting. One lone Republican, Rep. Johnson (IL), voted against the bill. Note the state.
Presidential candidate Rep. Ron Paul (R-TX) did not vote. The Senate is expected to easily pass the bill, since it was the Senate that insisted on the immunity provision. Both Sen. John McCain (R-AZ) and Sen. Barack Obama (D-IL) support the bill. Neither mention telecom immunity in their prepared statements.
The Qwest Example Ignored
Continued silence about lonely Qwest, the sole telecom to follow the advice of its lawyers and refuse to play. (Exception: some blog post commenters bring up Qwest.)
After refusing to play ball, Qwest was allegedly financially penalized when the government "[canceled] a separate, lucrative contract with the NSA in retribution."
Those firms that said "yeah, whatever" have reaped large (lucrative?) government contracts. For example, Verizon had $154,536,000 in federal contracts in 2002, about 40% of its total earnings for that year ($389 million). In 2007? Almost a 10-fold increase, to $1,320,637,982 in contracts and about 45% of total earnings ($2.9 billion).
And of course, since it's a "secret" program related to "security" ... and now, technicaly, legal ... we'll probably never really know when the dicussions began.
Where would the stock valuation be without those contracts?
Codifying The "It's Legal If We Say It Is" Defense
At the Washington Post, Phillip Carter reminds us that "telecommunications providers... have long had similar [to the new FISA] statutory and common law immunities available to them." Then he goes on to endorse the bill, saying that "the responsibility buck has to stop somewhere, and that should be with the government decisionmakers who initiate surveillance, not the telecom companies.
The "compromise" language avoids "blanket" immunity and instead says that telecoms must show a judge that they had a goverment request in writing. If they do, they're off the hook.
So if the government asks you to do something, it's now apparently ok to just blindly do it, so long as the request is on a piece of paper. See Greenwald on that logic:
In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected.
Added:: Unfortunately, I missed this gem from Greenwald. It seems that no paper need be shown, it only has to be asserted:
Perhaps the most repellent part of this bill (though that's obviously a close competition) is 802(c) of the telecom amnesty section. That says that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.
"War Footing" Defense Flawed
At FierceTelecom.com, Jim O'Donnell writes: "There’s no doubt the country was on a war footing immediately after the terrorist attacks, the telcos would likely have faced more flack for denying access (see Qwest if you have any doubts)." He must think the Qwest CEO lied about retaliation ... nor does he seem aware that Qwest said Bush et al contacted them about the warrantless wiretapping program in February 2001. Long before "war footing." Swampland makes the same (eroneous, according to Qwest) argument and links the immunity to 9-11.
Qwest stockholders will now probably sue Qwest for not playing along and getting a piece of that government pie. Paging Ayn Rand.
"But We Need A New Law" Defense Flawed
I wish I had written this. From a comenter at Swampland:
The last time I checked ordering companies to violate the law extensively and continuously for a period of years, and then only pushing for changes in statute when caught out by the NYT is doing things a$$-backward.
Yes, FISA needed updating. (There's argument here, too, about the substance of the updating. Greenwald says the law allows "vast" wiretapping powers akin to the Watergate era - pre-FISA.) Nevertheless, it was the Bush Administration and Senate Republicans who held the bill hostage by insisting on retroactive immunity for their friends, as a condition for updating the law.
Unfortunately, there's no presumptive Presidential nominee standing up to this injustice.