Rockefeller and the Senate Close to Granting Immunity for Telecommunication Companies

In the latest shocker for civil libertarians, the Senate appears set to grant immunity to telecommunication companies after they participated in the unlawful domestic surveillance program. The Democrats faced intense criticism last year and hoped that the attention and ire of voters would subside with the distraction of elections. The fix was in, however, months ago when Senate Majority Leader Harry M. Reid (D-Nev.) picked the Senate Intelligence Committee’s proposal (favoring immunity) to be the legislation to go first to the floor.

While Reid has said that he personally opposes immunity and asked for additional time from the White House to work out a compromise, he made an outcome-determinative decision in selecting the Senate Intelligence Committee to lead on the floor. Due to that procedural choice, it will take 60 votes for opponents to stop immunity. It does not appear that they have the votes, which was obvious when this decision was made by the Senate Democratic leadership.

In the meantime, the GOP and the White House are playing a game of chicken with national security by refusing to extend the law while negotiations continue — forcing an up-or-down vote.The Intelligence Committee Chair John D. Rockefeller IV (D-W.Va.) is supporting immunity. It was disclosed last year that Rockefeller knew of both the unlawful surveillance program and the torture program for years. Rockefeller promised this week that his immunity proposal “will prevail.”The telecom lobbyists always had the upper hand with some members of the Democratic leadership, which hopes to pass the immunity bill once attention fades in 2008.

In an astonishing move, Sen. Diane Feinstein is trying to move the entire matter out of the federal courts and into the secret FISA court. The only value of such a move is to reduce the political fallout and make immunity more likely for the telecom companies. Despite the overwhelming opposition to immunity among Democrats, Independents, and civil libertarians, the Senate has been quietly working with lobbyists for the industry to find ways to grant immunity. The move would kill over 40 lawsuits by public interest and civil libertarians groups. It would stop the work on judges, who have refused to dismiss these important cases. Notably, Majority Leader Harry Reid has shown lukewarm support for those like Sen. Dodd, Kennedy, and Feingold opposing immunity.As usual, the Democrats on the Senate Intelligence Committee — led by Sen. Rockefeller — supported the White House in killing the pending and future lawsuits. The Democrats on the Judiciary Committee supported the civil liberties side and denied immunity in their bill. Reid initially moved the pro-telecom Intelligence bill to the floor first and did little to assist his colleagues in moving the pro-civil liberties measure.

It was only after a determined campaign from advocates and Democratic colleagues that he relented in allowing both bills to go to the floor — but insisted that the Senate Intelligence bill would be the first legislation. This meant that it would have to be amended. Nevertheless, the filibuster tactic by Sen. Dodd paid off. The heat was too intense for Democrats and Reid decided to pull the legislation in 2008. However, before it was pulled, it was clear that, once again, the Democrats are divided on a fundamental issue of civil liberties.

Feinstein’s proposal is particularly worrisome. She would have the entire matter given to the secret FISA court. Why? Federal courts routinely review secret information given in camera and ex parte by the government. I have been counsel in cases with information classified at this level without the need to removal it to the FISA court. The benefit goes entirely to the telecom companies. First, it would reduce the vulnerability of the companies by reducing the number of judges. It is likely that one or more of these judges will side with the civil liberties groups. This would reduce it to one court with a long conservative, pro-intell record. Second, it would prevent the public and media from witnessing the proceeding — thereby giving these Senators political cover and reducing public backlash. Third, it would reduce the ability of the parties to argue their cases. Private counsel is normally barred from FISA proceedings and the court does not allow for the basic procedures of discovery and adversarial process.

There is no good policy argument for immunity. If the White House is correct and they acted legally, they have nothing to fear. But these Democrats and the White House know that the companies did not act lawfully. Thus, they are struggling to protect the companies for our own courts and our own laws. The disconnect with voters is extraordinary. As with the torture vote, the fix is in on immunity. The only question is timing. This cynical manipulation of the vote reflects a certain contempt for Democratic voters and a major flaw in our political system. While civil liberties advocates like Sen. Feingold exist in the Senate, there remains a general lack of support for these principles over political expedience.While Senator Dodd is promising a fight, he has been clearly undermined by his own leadership. The vote will again confirm the disconnect between statements of the Senate leadership to voters and their own actions — or lack of action. The leadership could have killed this immunity provision. Instead, senators will vote against it while ignoring the fact that they could have blocked it. The loser, once again, will be civil liberties.

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24 thoughts on “Rockefeller and the Senate Close to Granting Immunity for Telecommunication Companies”

  1. Patty C,

    One more item respecting your privacy question. Did you know that there exists a congressionally created Privacy and Civil Liberties Oversight Board? From its mission statement:

    The Board advises the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism. This includes advising on whether adequate guidelines, supervision, and oversight exist to protect these important legal rights of all Americans.

    In addition, the Board is specifically charged with responsibility for reviewing the terrorism information sharing practices of executive branch departments and agencies to determine whether guidelines designed to appropriately protect privacy and civil liberties are being followed, including those issued by the President on December 16, 2005: Message to the Congress of the United States on Information Sharing; and Memorandum for the Heads of Executive Departments and Agencies.

    In the course of performing these functions within
    The Board advises the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism. This includes advising on whether adequate guidelines, supervision, and oversight exist to protect these important legal rights of all Americans.”

    Very laudable. No good act goes unpunished by this administration however and so now Mr Bush is killing off the board:

  2. Thanks, DW, right back atchya! Interesting article indeed AND on point with Kelo.

    How much is the Constitutional right to privacy worth these days,
    ya think?

  3. Great post Patty C!

    Those folks at the EFF are true heroes. I thought you might be very interested in this:

    At issue is whether the proposed retroactive telco immunity before the Senate would represent if enacted an unconstitutional violation of the Takings Clause! And a departure from tradition in not providing the plaintiffs with some sort of compensation fund.

  4. DW, I don’t care for the two pre-supposed amendments, either.
    Neither has a chance of taking us where we want to arrive or net us the results we want to achieve. Chris Dodd, might just be ‘da Man’.

    I listened to Bushes final SOU, after I posted, about how PAA turns into a ‘Pumpkin’ on Friday, yaddayaddayadda. Not exactly…
    Interesting week ahead!

    This from

    January 24th, 2008
    Congress Stand Firm: Surveillance Continues Even If PAA Expires
    Posted by Cindy Cohn

    The Administration has been in a full-court press to bully Congress into making horrible permanent changes to FISA — including immunity for telecommunications carriers like AT&T — based on the argument that critical surveillance of terrorists will be cut short or degraded if the Protect America Act (PAA) expires on January 31, 2008.

    But no surveillance started by the PAA will end when the PAA expires. All of the spying done under the PAA will continue until at least July 31, 2008 even if the law goes to the dustbin of history on January 31, as it should.

    The PAA provides that any currently ongoing surveillance continues until the “date of expiration of such order,” even if PAA expires. “Orders” are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be issued for up to a year at a time, and since the PAA is only 6 months old, every order issued under the PAA will still continue for at least six months, until July 31, 2008, even if the law expires. And a surveillance order issued on January 30, 2008 will allow continued surveillance until January 30, 2009.

    Even immunity proponent Senator Rockefeller agrees on this point. In a press release he issued today (it’s not online yet) he said:

    “Our government will continue to have authority under the law until at least August of this year, and can even extend that authority until January 2009.”

    No surveillance will go dark on February 1 if PAA expires. None.

    The Protect America Act is straightforward about this. First, the part where surveillance “orders” last a year:

    Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States

    Then the fact that these orders remain in effect until they expire even if PAA ends:

    Section 6
    (b) Transition Procedures- Notwithstanding any other provision of this Act, any order in effect on the date of enactment of this Act issued pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall remain in effect until the date of expiration of such order …

    And even after that, the Administration can seek reauthorization for any order, and even seek new orders, if they just go the the FISA court. That’s here:

    (continuation of section 6(b)
    and, at the request of the applicant, the court established under section 103(a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as long as the facts and circumstances continue to justify issuance of such order under the provisions of the Foreign Intelligence Surveillance Act of 1978, as in effect on the day before the applicable effective date of this Act. The Government also may file new applications, and the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter orders granting such applications pursuant to such Act, as long as the application meets the requirements set forth under the provisions of such Act as in effect on the day before the effective date of this Act.

    The Administration’s time pressure on Congress is purely political theater. Congress should stand firm.

  5. And one more thing…..

    If Harry Reid has an iota of pride left, any scintilla of self-esteem left unsullied by his constant knuckling his forehead to the Republicans, perhaps he might take umbrage at allowing Mitch McConnell to keep speaking as if the latter were the “real” Leader. I can’t believe some of the things McConnell has said on the floor that were clearly breaches of senatorial courtesy and the at least token deference one is supposed to accord the Majority Leader.

    For example, in re the judiciary committee’s version of the telco bill:

    “That bill will not, I repeat, will not become law. Reconstructing the judiciary committee bill is a pointless exercise. It’s an exercise we do not have the luxury to engage in. We can get serious and pass the bipartisan Intelligence Committee product.”

    One would think Reid was a potted plant, or worse, a Minority Leader.

  6. The danger is Spector/Whitehouse’s amendment moving the litigation from the telco’s to the government.

    The telco’s can’t invoke state secret privilege. The government can and will. That’s why Spector’s brainchild has to be defeated along with the immunity. Feinstein’s idea is equally bad. Removing the cases to some FISA court with the latter’s long tradition of deference to the Executive, stacks the deck against the litigants.

    No, best is allow the the PAA to die a much deserved death and revert back to FISA and allow the litigation to go forward.

    Dodd, by the way, is surprising everyone. A little like Lou Dobb’s conversion from get-along, go-along business conservative to table-thumping economic populist (and born-again nativist), Dodd has found his genuine voice and I wish him well.

  7. WoooooooooHooooooooo

    Senate blocks removal of telecom immunity from FISA.

    “In a 60-34 vote, the Senate today defeated an initial attempt “to strip immunity for telecommunications companies” out of FISA.Democratic senators “are planning at least two more amendments seeking to remove the immunity clause. If they both fail, then Sen. Chris Dodd, D-Conn., has repeated his pledge to attempt to block a vote on the bill.”

  8. High drama in the Senate today. Obama and Clinton are going to vote against cloture, and it looks like Arlen is going to support the 30 day extension..Our Senate is moving into unfamiliar territory, defying the Administration and its “if you don’t do everything we ask, you are supporting the terrorists” meme.

  9. “What we do about history matters. The often repeated saying that those who forget the lessons of history are doomed to repeat them has a lot of truth in it. But what are ‘the lessons of history’? The very attempt at definition furnishes ground for new conflicts. History is not a recipe book; past events are never replicated in the present in quite the same way. Historical events are infinitely variable and their interpretations are a constantly shifting process. There are no certainties to be found in the past.”
    -Gerda Lerner

  10. Deeply Worried posts a very worthwhile link to a very appropriate Op-Ed from this past October. This information and other articles have been out there, highly visible. That’s what makes the constant genuflecting by Harry Reid even more intolerable. Pelosi choses to comment on how deals she has agreed to don’t please her (as she just did with the silly stimulus package), but we must endure. Meanwhile, these two most powerful Congressional Democrats in the country don’t even appear to be re-electable.

    Harry Reid purposely derailed moves to bring this discussion in the open without immunity as the beginning of JT’s article indicates. It is this type of old-fashioned quid pro quo, performed in the darkest corners of the conscience that distorts reality. By the time the press is done not reporting it understandably, our distracted electorate assumes they already know the story and weigh-in by everything from tuning in the latest episode of Survivor to washing, changing and getting to that second job. We’re a distracted electorate – while Congress and the President are getting sore backs bowing for their 650 dollar leveraged buy-out of the American conscience – our politicians are playing Texas Hold em’ and we’re the big blind.

    While immunity may indeed be an outrage – it would be worse if we don’t examine in the open – how in fact a Constitutional demolition team took over our Government on our dime.

  11. I’ve got to agree with Mr. Caminiti. What in the world has happened to our country? Have those in office even read the Constitution? They most definitely are not looking out for our best interests, but for theirs.
    I also agree that they’ve ALL got lots to hide. Secret deals. I’m really sick of this whole thing, month after month, another scandal, another sellout. And we’re going to vote for a “new” president? More of the same, no matter who it is.
    When will WE wake up & rebel? Pretty soon, it’s gonna be too late to.

  12. Well … sorry for the dissenting reaction … but I’m not surprised at all. I’m outraged – but not surprised in the least. And we had better get used to the conflicts in the future – of our new newly transformed system. A Government by the Governors, of the Governors and for the Governors. There is much to the seeming unanimity among the ruling class, irrespective of Party, because they all have much to fear, should the voracious appetites of legal professionals be unleashed on this smörgåsbord of litigation. This would potentially make the Tobacco Company legal industry look like a warm-up.

    I disagree that immunity proposal serves no purpose. You in fact pointed out one of the major purposes. A back-brace for the feckless and diminutive Harry Reid. The other is obviously payback for all the protection money politicians have collected. As to its propriety, that’s a different matter.

    I don’t think any reasonable American would be opposed to capping gains or rigging the system in terms of preventing the Tobacco industry feeding frenzy. On the other hand, I can’t imagine anyone being opposed to wiping out the abilities of these companies to pay dividends to stockholders by penalizing them severely. So much for letting the stakeholders deal with their own investments – not with the royalists in power.

    Feingold is routinely on the most sensible side of issues. Dodd has become a pragmatist and of late, even a bit more dedicated. But Diane Feinstein, my ‘be-loathed’ Senator, is clearly not going to be running again and is playing her version of ‘supermarket sweepstakes’, filling her wagon as she can with her remaining time.

    Unfortunately, it is my opinion that we’ll be getting the dry heaves from this word immunity for a long time before any real reform gets underway in this country – and that won’t happen until there is a third party – not the spoiler party – a powerful third party.

  13. Lobbyists! Just another example of a bill with no constituency, just like the bankruptcy bill. Our only hope is that Chris Dodd prevails in his filibuster. FSM help us!

  14. I agree that this immunity proposal is deeply disturbing, and it leaves any citizen open to being illegally recorded for little, if any, probable cause to do so. I was very surprised to learn that Sen. Feinstein wants to have the matter moved to some kind of secret court. What is there to hide, one has to wonder? Obviously, there must be a lot more than these politicians want the general public to know.

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