The fight to ensure that our Democratic Congress continues to hold its ground and refuses to take Jay Rockefeller's unwise advice to roll over for the Bush Administration on telecom amnesty has been of central importance for many of us in the progressive community.  Kossacks mcjoan and Kagro X have both done an outstanding job keeping this and the intimately related FISA issues front and center in the netroots, and groups like the Courage Campaign have done well in making sure that progressive activists continue to lobby decision-makers to do the right thing.

It wasn't in front of the Judiciary Committee, but it might be a portent of things to come, given Leahy's interest in talking to Mukasey. Yesterday he appeared at a budget hearing in the Subcommittee on Commerce, Justice, Science, and Related Agencies, on which Leahy and Feinstein sit. They each had more than budgets in mind.

Leahy asked Mukasey about his false assertion in a recent speech that the U.S. had received intelligence about calls from a "safe house in Afghanistan" just prior to 9/11, but weren't able to act upon it because of FISA laws:

On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.

"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.

"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.

"One thing I got wrong. It didn’t come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated.

Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.

"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn’t need it then. And we didn’t need it today."

So what was Mukasey talking about and how did it have anything to do with FISA? We still don't know. In the letter he references, there is this:

We have provided Congress with examples in which difficulties with collections under the Executive Order resulted in the Intelligence Community missing crucial information. For instance, one of the September 11th hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack. The failure to collect such communications was one of the central criticisms of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11.

This explanation has come up before, when the DoJ responded to Glenn Greenwald's inquiry, and it failed under the scrutiny of both Glenn and emptywheel. What that Joint Inquiry concluded was that, while there may have been problems with intelligence agency coordination, the problem was not that FISA--or any other law--prevented intelligence activities, but that NSA chose not to follow up on this lead. So Mukasey continues to evade the real points--what has this to do with FISA, and why didn't the 9/11 Commission have this information.

Feinstein had little more luck trying to pry an answer out of him as to whether the yet-to-be released Yoo memo on the Fourth Amendment has been withdrawn:

..."I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo....

[Extended back and forth in which Mukasey refused to directly answer the question]

...Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."

When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

Because that memo has not been declassified, we don't know what was the "crucial aspect of that memo." Nor is it at all clear that the memo, like the infamous torture memo, has been withdrawn. Or whether this memo provided the legal rationale for warrantless wiretapping. What is clear is that, while he might be more adept at avoiding answering questions to Senators than his predecessor, he's no more inclined to tell the truth. But that's no reason to not haul his ass up to the Hill on at least a weekly basis to try.

There's no time like the present. Senator Leahy should schedule a hearing for Mr. Mukasey before the Judiciary Committee dedicated to just these questions.

In the ongoing saga of the tearful story told by Mike Mukasey in trying somehow tie telcom amnesty to 9/11, Glenn gets confirmation that Mukasey is full of it

I just received the following statement from the Vice Chairman of the 9/11 Commission, Rep. Lee Hamilton, in response to my inquiries last week (and numerous follow-up inquiries from readers here) about Attorney General Michael Mukasey's claims about the 9/11 attack and, specifically, about Mukasey's story that there was a pre-9/11 telephone call from an "Afghan safe house" into the U.S. that the Bush administration failed to intercept or investigate:

I am unfamiliar with the telephone call that Attorney General Mukasey cited in his appearance in San Francisco on March 27. The 9/11 Commission did not receive any information pertaining to its occurrence.

That's the statement in its entirety, and it's hard to imagine how it could be any clearer.... In light of Hamilton's amazing comment, could journalists possibly now report on this story? One of two things is true about Mukasey's extraordinary claim about how and why the 9/11 attacks occurred. Either:

(1) The Bush administration concealed this obviously vital episode from the 9/11 Commission and from everyone else, until Mukasey tearfully trotted it out last week; or,

(2) Mukasey, the nation's highest law enforcement officer, made this story up in order to scare and manipulate Americans into believing that FISA and other surveillance safeguards caused the 9/11 attacks and therefore the Government should be given more unchecked spying powers.

I vote for #2, but wouldn't it seem like this would be something some enterprising investigative reporter would want to find out?

What's more, it seem like something Committee Chairs Reyes, Rockefeller, and Leahy would be interested in joining with Conyers to ask about. The Congress, and the country, needs to hear what Mukasey has to say about this.

Yesterday, Harry Reid gave Republicans another chance to show their true colors in this fight, do they mean it when they say they want to protect America, or is it about protecting AT&T?

"On several occasions, I have proposed a 30-day retroactive extension of the law that expired in February, the so-called Protect America Act.  My purpose is to make sure there is no gap in our intelligence gathering capacity, and to set a deadline for final action on a longer-term bill.  But the President has threatened to veto such a bill and Republicans have blocked it.

"I will now again propose such an extension.  Republicans may again object.  But if they do, they bear responsibility for the fact that this law is not in place.  Eventually, the President and Republican leaders must come to the negotiating table, for the good of the country."

Three guesses what the Republicans did.

Senate Republicans blocked a Democratic attempt to revive a controversial wiretapping law for 30 days on Monday night, leading to a mini-squabble on the chamber floor over the Bush administration’s program.

Majority Leader Harry Reid (D-Nev.) had asked for unanimous consent for the month-long extension to allow more time for House-Senate negotiations....

"It’s time for us to get serious and protect the companies that protect us," McConnell said.

This was the law, the Protect America Act, that Republicans told us was necessary for preventing the end of the world. Until Democrats said "bullpuckey" and let it expire, after which the world did not end. Now that bill isn't enough, because the gaps in intelligence they insisted would cripple us if the law expired are not nearly as important as letting AT&T off the hook for illegally spying on us.

The Republicans are still playing politics with this bill, still using the threat of the apocalypse to scare their dwindling base into organized calling efforts against people like Dem Freshman Kirsten Gillibrand, who stood up to the pressure and voted for the sane, amnesty-free, House FISA bill. I wonder if all those callers know that they've been duped into trying to protect their phone company?

Note: Eric Lichtblau will be joining us for a live blogging session tomorrow at 7:00 p.m. EDT, to talk about his book, NSA wiretapping, and whatever you want to ask him.--mcjoan

In January of 2003, Senator Jay Rockefeller received his first briefing as a member of the Gang of Eight, the House and Senate leaders for each party and the ranking members of the Intelligence Committees, who were let in on some of the secrets of our national intelligence. Exactly what the Gang of Eight was told before the NYT's revealed the NSA's warrantless wiretapping is in dispute, but by all accounts, the picture seems to have be pretty incomplete.

It did raise some serious concerns among those members, though, including one Senator Jay Rockefeller. Eric Lichtblau, the reporter who with his colleague James Risen broke that NSA story, writes in his new book, Bush's Law: The Remaking of American Justice, about Rockefeller's concerns.

Senator Rockefeller, a close friend of Graham [who he replaced on the committee] received his first White House briefing on the program in January of 2003. After another briefing from General Hayden and George Tenet on the program that July, he decided he would no longer sit quietly. The program described to him sounded all too similar to the Pentagon's dreaded Total Information Awareness concept, which Congress had explicitly banned a few months earlier. So Rockefeller, hours after the latest briefing, composed a letter to Dick Cheney so secret that his own copy had to be locked away at a secure government site. His frustration was evident.

July 17, 2003
Dear Mr. Vice President,
     I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, chairman Roberts and our House Intelligence Committee counterparts.
     Clearly, the issues we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult my staff or counsel on my own, I feel unable to evaluate, much less endorse these activities.
     As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology and surveillance. Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.
     I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.
     I appreciate your consideration of my views.
     Most respectfully,
           Jay Rockefeller

Rockefeller's concerns, he complained, were never answered--by the vice president or anyone else. At Cheney's direction, the program continued on. But the White House was now on notice: at least one member of the Gang of Eight was clearly troubled by the NSA's spying operation and all the unanswered questions it raised, and White House officials were getting increasing nervous about what else Rockefeller might do. The walls they had worked so meticulously to erect around the NSA program were showing the first real sign of cracking. (pp. 170-01)

Except of course, that it didn't crack until Lichtblau's and Risen's story broke.

But the point is, Rockefeller still hasn't received those answers. And on top of that, we've since learned that the TIA program that Rockefeller was duly concerned about in 2003 did continue after the Congress's ban.

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.

What happened to Rockefeller's concern when he became Chair of the Intelligence Committee, and chose to carry Bush and Cheney's water by pushing the White House FISA bill? Why would he want to close off one of the last remaining avenues to having those questions answered, by ending the suits brought by EFF and the ACLU?

I don't have the answers. But I do know that if his concerns have been put at ease by the Bush administration, he's increasingly alone among Democrats.

Via DWT, here's the kind of dubious company Bush, Cheney, and AT&T are in.

Robert Mugabe's aides have told Zimbabwe's opposition leaders that he is prepared to give up power in return for guarantees, including immunity from prosecution for past crimes.

That's how they do it in dictatorships. Does Congress want to give the Bush administration the same kind of deal that a brutal dictator demands?

That Mukasey has been trying to exploit 9/11 in order to make a case for a bad FISA bill, including retractive amnesty, seems to be no longer in question.

But now he, and his DoJ staff, seem to be digging an ever deeper hole. A brief recap: in remarks to the Commwealth Club last week, Mukasey basically said that FISA laws prevented the intelligence community from following through on "a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States." 9/11 Commission Director Zelikow hadn't heard this story, nor had Judiciary Chair Conyers. This obviously gave rise to the question, what in the hell was Mukasey talking about--another intelligence failure by the administraiton in the days before 9/11? A story made up out of whole cloth to try to justify gutting FISA?

Glenn followed up with the DoJ attempting to get clarification. Here's the response:

In a question-and-answer session after his Commonwealth Club speech last week, Attorney General Mukasey referenced a call between an al Qaeda safe house and a person in the United States. The Attorney General has referred to this before, in the letter he sent with Director of National Intelligence McConnell to Chairman Reyes on February 22, 2008. In that letter, contained in this link [.pdf], the Attorney General and the Director of National Intelligence explained that:

"We have provided Congress with examples in which difficulties with collections under [Executive Order 12333] resulted in the Intelligence Community missing crucial information. For instance, one of the September 11 hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack. The failure to collect such communications was one of the central criticisms of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11. The bipartisan bill passed by the Senate would address such flaws in our capabilities that existed before the enactment of the Protect America Act and that are now resurfacing."

This call is also referenced in the unclassified report of the congressional intelligence committees' Joint Inquiry into the 9/11 attacks.

So what does this clarify in regards to Mukasey's comments last week? Nothing. In the letter, they specifically say that the call was made from inside the U.S., but Mukasey said the call was made from Afghanistan, a detail that is important in terms of the law. Also note that the letter stresses that it was the Reagan era Executive order 12333 and not FISA. In fact, EO 12333 has nothing to do with FISA.

This defense from the DOJ hardly strengthens Mukasey's case against FISA, as Glenn notes, because the Congressional Joint Inquiry referenced concluded something very different:

The pre-9/11 failures, as the Joint Inquiry itself concluded, were failures resulting from how the NSA used its legal authorities, not from insufficient legal authorities or excessive legal restraints. Even if this were the call that Mukasey was describing -- and that is very dubious -- none of that has anything to do with FISA. Such an incident would not even have justified loosening the pre-9/11 safeguards, let alone -- after seven years of endless erosion of such safeguards -- justify any further erosion now.

Emptywheel has more investigation here, and reaches a similar conclusion:

In any case, it's ultimately not clear whether the Joint Inquiry--and therefore both intelligence committees in Congress--learned any significant detail about the call Mukasey describes, at least not before 2002. If they did, though, they clearly have a dramatically different understanding of why NSA didn't fully access that call than Mukasey currently does. And if the Joint Inquiry was told all the details about that call, then Mukasey is, once again, claiming FISA prevented NSA from doing something that it in fact did not prevent.

What this whole episode has revealed, and continues to reveal is that this administration--particularly the point men McConnell and Mukasey--will say anything to get the Rockefeller/Cheney bad FISA bill passed. Gratuitously exploiting 9/11 is just par for the course. The question now is whether Democrats in Congress, especially Jay Rockefeller who has carried their intelligence water for far too long, will continue to fall for it.

Chairman Conyers and some of his colleagues on the House Judiciary Committee are demanding answers from Mukasey about his remarks claiming there was a pre-9/11 call from a terrorist safe house in Afghanistan that was not intercepted by federal authorities. They also take the opportunity to follow up on a previous request for an October 2001 Office of Legal Counsel memo providing legal analysis about the President’s war powers.

The letter [pdf]:

April 3, 2008

The Honorable Michael Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

Dear Mr. Attorney General:

We are writing about two disturbing recent revelations concerning the actions and inactions by the Department of Justice and the federal government to combat terrorism. These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11, and the partial disclosure of the contents of a secret Department memorandum concerning Executive Branch authority to combat terrorism, which has been previously requested to be provided to Congress. We ask that you promptly provide that memorandum and that you clarify your public statement in accordance with the questions below.

First, according to press reports, in response to questions at a March 27 speech, you defended Administration wiretapping programs and proposals to change the Foreign Intelligence Surveillance Act (FISA) by referring to a pre-9/11 incident. Before the 9/11 terrorist attacks, you stated, "we knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went. You’ve got 3,000 people who went to work that day, and didn’t come home, to show for that."1

This statement is very disturbing for several reasons. Initially, despite extensive inquiries after 9/11, I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks. In addition, if the Administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law. For example, even assuming that a FISA warrant was required to intercept such calls, as of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.2 If such calls were known about and not intercepted, serious additional concerns would be raised about the government’s failure to take appropriate action before 9/11.

Accordingly, we ask that you promptly answer the following questions:

1. Were you referring to an actual pre-9/11 incident in the portion of your statement quoted above? If not, what were you referring to?

2. Do you believe that a FISA warrant would have been required to intercept a telephone call from a known terrorist safe house in Afghanistan to the United States in 2001? If so, please explain.

3. Even assuming that such a warrant would have been required, do you agree that even before 9/11, FISA authorized emergency interception without a warrant for a 48-hour period of phone calls from a known terrorist safe house in Afghanistan to the United States?

4. Assuming that you were referring to an actual pre-9/11 incident in your statement, please explain why such phone calls were not intercepted and appropriately utilized by federal government authorities in seeking to prevent terrorist attacks.

Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, the contents of a secret October, 2001 OLC memorandum were partially disclosed. Specifically, the 2003 memorandum explains that in an October 23, 2001 memorandum, OLC "concluded that the Fourth Amendment had no application to domestic military operations."3 On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum .4 The memorandum has not been received despite these specific requests.

Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States. The people of the United States are entitled to know the Justice Department’s interpretation of the President’s constitutional powers to wage war in the United States. There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation. The notion that the President can claim to operate under "secret" powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.

Please provide your responses and direct any questions to the Judiciary Committee office, 2138 Rayburn House Office Building, Washington, DC 20515 (tel:202-225-3951; fax: 202-225-7680). Thank you for your cooperation.

Sincerely,

John Conyers, Jr.
Chairman, Committee on the Judiciary

Jerrold Nadler
Chairman, Subcommittee on the Constitution, Civil Rights and Civil Liberties

Robert C. "Bobby" Scott
Chairman, Subcommittee on Crime, Terrorism and Homeland Security

Good start. We've seen plenty of sternly worded letters from this Congress before. Hopefully now Congressional leaders will be willing to use the leverage they have--further consideration of the FISA bill--to enforce this request. At the very least, as long as the administration continues to stonewall on this, they should stonewall on taking action on FISA.

Greenwald has a follow up post to the one I highlighted earlier, examining the assertion  Michael Mukasey made in a speech last week before the Commonwealth Club that somehow our intelligence community was unable to pursue a telephone call made by an al Qaeda terrorist from a known "safe house in Afghanistan" into the United States, because of FISA, thereby claiming that FISA was responsible for the deaths of thousands of Americans on 9/11. An assertion that is patently false, as monitoring calls originating in a foreign country have never required a warrant.

But there's more important aspects of this story. Glenn:

This isn't just a matter of academic and historical interest about the 9/11 attacks, although it is that. One of two things almost certainly happened here, each of which is of great importance. Either Mukasey is lying about the 9/11 attacks in order to manipulate Americans into believing that FISA's warrant requirements are what prevented discovery of the 9/11 attacks and caused 3,000 American deaths -- a completely disgusting act by the Attorney General which obviously cannot be ignored. Or, Mukasey has just revealed the most damning fact yet about the Bush's administration's ability and failure to have prevented the attacks -- facts that, until now, were apparently concealed from the 9/11 Commission and the public.

Greenwald asked 9/11 Commission chairs Hamilton and Kean as well as director Phillip Zelikow for clarification about this story, since it did not appear in the 9/11 Commission report. Hamilton refused comment, and Kean hasn't responded yet. But Zelikow said this:

Not sure of course what the AG had in mind, although the most important signals intelligence leads related to our report -- that related to the Hazmi-Mihdhar issues of January 2000 or to al Qaeda activities or transits connected to Iran -- was not of this character. If, as he says, the USG didn't know where the call went in the US, neither did we. So unless we had some reason to link this information to the 9/11 story ....

In general, as with several covert action issues for instance, the Commission sought (and succeeded) in publishing details about sensitive intelligence matters where the details were material to the investigative mandate in our law.

In other words, as Glenn says, "polite Beltway talk for saying that nothing like what Mukasey described actually happened." Of course, there was plenty of information withheld by the administration, with Gonzales leading the obstruction charge. Would they have withheld this nugget, in an attempt to make them look a little less incompetent? The intelligence failures in the days leading up to 9/11 are legion, and every one of them an embarrassment to the administration. Perhaps they didn't want to have one more damning incident.

Or, perhaps, Michael Mukasey is a lying, political hack, trying to exploit the still gaping wound of 9/11 to secure his bosses' greatest desire: retroactive telecom amnesty that will also conveniently close the judicial book on this illegal program. We were better off with Gonzales, in many ways. At least we knew his default mode was lying. Mukasey is more dangerous because he's respectable. But he's apparently as much of a lying hack and lackey as his predecessor.

As a matter of principle, this Congress should refuse to consider any more intelligence related legislation put forth by this administration, particularly FISA. This administration and the two point men they have put in charge of their FISA case, Mukasey and DNI McConnell, have proven time and time again to be outright liars, to be so politically motivated in pursuing retroactive amnesty that they will say anything to gain leverage.

At the very least, there should be a complete moratorium on Congressional action on any intelligence related matter--particularly FISA--until Mukasey testifies before Congressional Committees about this assertion.

Update: Contact the Congressional Leadership and the chairs of the Judiciary and Intelligence Committees to demand hearings to determine whether Mukasey is telling the truth, and whether there's more we need to know about FISA and intelligence. Contact your own Senators and Representative, too, and ask them to demand answers before they vote on FISA:

• Harry Reid, Phone:  (202) 224-3542, Fax: (202) 224-7327
• Nancy Pelosi, Phone:  (202) 225-4965, Fax: (202) 225-8259
• Steny Hoyer, Phone:  (202) 225-4131, Fax: (202) 225-4300
• Patrick Leahy, Phone:  (202) 224-4242, Fax: (202) 224-3479
• Jay Rockefeller, Phone:  (202) 224-6472, Fax: (202) 224-7665
• John Conyers, Phone:  (202) 225-5126, Fax: (202) 225-0072
• Silvestre Reyes, Phone:  (202) 225-4831, Fax: (202) 225-2016

Greenwald reports the House is all set to capitulate on FISA, circulating a bill that gives Bush everything he wants except immunity.

But that's good, you might think, at least no immunity  . . .

No, no, you silly, these are Democrats.  The plan is to pass the bill without immunity, send it to the Senate, which will add immunity and send it back to the House, and then meekly accept the Senate Amendment.

My disgust is registered below the fold.
Update:  My apologies to the House leadership, at least for now -- they did the right thing and passed a bill without immunity, crafted to peel off at least some of the pro-immunity Democratic Senate votes.  Let's hope they stand firm if the Senate sends the bill back with immunity.

Blogger bmaz, an attorney with some telecom expertise, has been advancing an argument that Congress really ought to address before passing a FISA bill. Bmaz maintains that before the telecoms began cooperating with the Bush administration by handing over customer data without a warrant, their lawyers certainly would have demanded and gotten a promise that the government would indemnify them against potential lawsuits.

It is my contention that the telcos have just such indemnification agreements with the Administration/government, that we do not know about because they are classified and hidden, that so protect them for any liability and losses resulting from the litigation they are faced with; thus they do not need immunity to protect them from potential liability verdicts, they are already covered...Simply put, telco legal departments are huge, experienced, and cutthroat competent. They did not fall off the turnip truck last night, nor any other night; and they have been dealing with wiretapping issues for law enforcement and national security concerns since the telephone came into use. As someone that has had dealings with such entities regarding bad/illegal wiretaps, I can attest that they always protect themselves vis a vis the governmental entity they are working for and are not shy about the use of indemnity provisions.

In an email to Kevin Drum, bmaz adds that telecom lawyers "have been dealing with wiretapping and surveillance agreements with the government and law enforcement for over seven decades, this was not a matter of first impression to them; and in difficult and unique cases, I have never seen them not insist on indemnification. Never."

It seems very likely, a priori, that the legal offices would demand indemnification. Furthermore that would explain several distinctly odd things about the FISA battle:

• that the telecoms have never felt anxious about the amnesty provision, nor have telecoms pushed publicly for Congress to enact it
• that the telecoms continued to cooperate with the administration even when the temporary Protect America Act lapsed
• that the Computer & Communications Industry Association opposes retroactive immunity and rejects the "manufactured hysteria" surrounding the issue
• that the Bush administration added the telecom amnesty provision to the mix only very late, even though Bush now declares that amnesty is the central issue

The way the FISA debate has evolved does not entirely make sense if the telecoms truly needed the profferred immunity. It makes a good deal more sense if the administration is aiming to keep concealed both the nature of the surveillance and the fact that it had to indemnify the companies at the outset.

Bmaz adds that the law (50 USC 1431) permitting the president to authorize such an immunity agreement and to keep it classified, also requires Congressional notification for amount in excess of 25 million dollars. That is another reason why members of Congress need to know whether Bush did in fact cut a deal with the telecoms - making the taxpayers liable in order to get telecom cooperation in spying illegally on the taxpayers. If Bush kept Congress in the dark despite a law mandating disclosure, why would they suppose that he can be trusted once Congress capitulates on FISA?

As Kagro X commented, the central question for a member of Congress voting upon the Senate FISA bill is:

Am I comfortable with this thing operating with absolutely zero oversight? And only if the answer is yes should you be voting for it. Because six-plus years of experience with this president should have taught you by now that that is how it's going to operate.

This is, in my mind, the most important issue going right now -- preservation of our constitutional liberties against the Bush/Rethuglican onslaught.

Several diaries and stories have recently documented the proposed cave-in of the House leadership on this issue.  We've already won if we just hold firm -- why snatch defeat from the jaws of victory?  My (brief) email to Pelosi and Hoyer is below the fold.  I urge all of you to send them your thoughts as well.

In the non-existent wake of the non-existent excitement over the non-existent clamor for a Bloomberg candidacy comes this piece of news about the equally-deluded numbskulls at the too-hopefully-named "Third Way."
Truthout.org reports:

A think tank with close ties to the telecommunication industry has been working with a key Democrat in the Senate on a domestic surveillance bill that would provide telecommunications companies with retroactive immunity for possibly violating federal law by spying on American citizens at the behest of the Bush administration.

Third Way, a non-profit "progressive" think tank that is funded and controlled by hedge fund managers, corporate lawyers and business executives has advised Sen. Jay Rockefeller on a domestic surveillance bill that includes immunity for telecommunications companies with which Third Way board members have close ties.

[...]

"We have advised Senator Rockefeller on messaging and have talked to his staff regarding FISA," Matt Bennett, vice president of Third Way said. "We believe there should be immunity and have been cooperating with [Rockefeller's staff]."

[...]

"I told him that we thought it would be helpful for [Rockefeller] to talk about the reasons for providing immunity to the telecoms," Bennett said. "We thought it would be a bad idea to allow these companies to be held legally liable for cooperating with the government ... you want to encourage the cooperation of not just the telecom industry, but all other industries in the future."

Here's the deal, Mr. and Ms. Media, if you ever find yourself forced to cover Third Way: There is no third way. Especially not on a legislative issue like this one. There is "aye." There is "nay." And that's all.

The mythical "third way" is just a second excuse for voting for one of the first two ways.

Observe:

• One group of Senators wishes to grant retroactive amnesty to the telecom companies who spied on Americans on George Bush's say-so.
• One group of Senators does not wish to grant that retroactive amnesty to the telecom companies who spied on Americans on George Bush's say-so.
• "Third Way" would like to grant retroactive amnesty to the telecom companies who spied on Americans on George Bush's say-so.

See? That's not a third way. It's the first way.

Get it? Easy as pie. I know you can do this!

Yes, they have a flag motif in their logo. Yes, they cater luncheons and hand out binders with attractively printed covers bearing that flag motif logo. And that's got to seem really, really serious. It looks like all the other stuff you've seen that actually is serious, right? But, really. There is no third way.

You can continue to enjoy their free lunches, I suppose. Or not. It's up to you. I don't begrudge anyone a free lunch now and again. In fact, if you have trouble remembering this lesson, think of it in terms of the lunches. You can either eat them or not eat them. But there's no third option.

Easy.

There. Is. No. Third. Way.

We now have this wonderful Democratic majority to protect us from the worst abuses of the Bush Administration.

We also have a Constitutional Scholar as one of the front-runners for the Dem Presidential nomination. He is man who is renowned for his ability to inspire unprecedented action with his oratory skills.

Crossposted

I don't know about you, but I was pretty excited at the beginning of this primary season. We had a slew of great Democratic candidates to choose from, a lot of ethnic diversity in the ranks, and a healthy range of solution-oriented ideas and agendas to inspire us. There were Dodd and Gravel giving us our straight talk, Kucinich being a progressive's progressive, Richardson showing some international insight, and Biden radiating a healthy glow of machismo. We also had Edwards' fire, Obama's optimism, and Clinton's...well...we'll go with gravitas. Back then, the future was so bright, I had to wear Biden's shades.

In their telling, when our biggest telecom corporations helped the President spy without a warrant, they were doing their patriotic duty. When they listened to the executive branch and turned over private information, they were doing their patriotic duty.

When one company gave the NSA a secret eavesdropping room at its own corporate headquarters, it was simply doing its patriotic duty. The President asked, the telecoms answered.

Shouldn't that be an easy case to prove, Mr. President? The corporations only need to show a judge the authority and the assurances they were given, and they will be in and out of court in 5 minutes. If the telecoms are as defensible as the President says, why doesn't the President let them defend themselves? If the case is so easy to make, why doesn't he let them make it? Why is he standing in the way? - Senator Dodd, on telecom amnesty, Dec. 17, 2007

Let's start a new list, shall we?  We already have a list of the 935 lies that the Bush administration used to sell the Iraq War to the American people.  Let's look at the lies that the Bush administration is using to manipulate Congress into voting for another ill-conceived and shameful policy.

There was, of course, the initial lie. That domestic spying was limited to "people with known links to al Qaeda and related terrorist organizations."  Then we learned the truth: that the net cast was much wider, covering millions of American phone calls.  Then there was the lie that the FISA wasn't flexible enough.  The truth, of course, was that spying could take place without a warrant for 72 hours.  And then there was the lie that, gosh, darn, there was just too much paperwork to fill out with each FISA application.  Even though the truth was that Bush administration was able to fill out over 113 of those applications since 9/11 (the total applications in the FISA court's 23 year history? 46.) Then there was the lie that the government could have prevented the 9/11 attacks had it not had to ask the FISA court for a wiretap. But the truth was that the failure to tap Moussaoui was a result of a clumsy FBI, and not a paralyzed DOJ. Then there was the lie that this domestic spying program was necessary in the wake of 9/11, but the truth is that the Bush administration approached the telecoms as early as February 21 27, 2001.

The most repulsive lie, however, is that telecoms who aided the administration in turning this nation's massive spying apparatus on its own citizens were just "doing their patriotic duty."  When asked to let the government into their buildings and into their networks and into the privacy of Americans without a warrant or court order, the telecoms jumped into action. They bravely opened their doors, valiantly opened their networks, and, gee, the only thing that was missing was attaching an American flag to each telephone pole and placing a fresh-baked apple pie at the foot of each tower.  

Republicans would have their Democratic colleagues buy into this lie, just as they have bought into so many others. But does this sound like a company whose heart is bursting with "patriotism"?

WASHINGTON (Reuters) - A telephone company cut off an FBI international wiretap after the agency failed to pay its bill on time, according to a U.S. government audit released on Thursday. [...]

[The DOJ Inspector General] cited the case in which a wiretap under the Foreign Intelligence Surveillance Act, which governs electronic spying in terrorism and intelligence cases, was disrupted due to an overdue bill.

"Late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence, including an instance where delivery of intercept information required by a ... FISA order was halted due to untimely payment," the audit said.

Ah, can you smell the sweet, sweet smell of patriotism, unadulterated by selfish corporate concerns!  If the telecoms break the law, they shouldn't face the consequences.  But if the government breaks its contract with the telecoms, well, hey, that FISA wiretap wasn't that important anyway. And what's a little lost evidence between uber-patriotic friends?

There isn't a flag pin big enough to cover the truth here.  The same "patriotism" that was used to ram the PATRIOT ACT though a quivering Congress, the same "patriotism" that was used to silence criticism of a reckless president deadset on taking this nation to war, the same "patriotism" that was used and is used to bully our elected officials into continuing to fund the Iraq Debacle, that same "patriotism" is now being used to sweep an illegal, massive domestic spying program under the carpet.  

As Senator Dodd and others have repeatedly emphasized, the telecoms already have a "good faith" defense which can protect them from pending and future domestic spying lawsuits.  Slathering on a layer of telecom amnesty over that serves no purpose but to suffocate the rule of law, excuse illegal conduct, and shield this administration's actions from judicial scrutiny.

And for members of Congress who embrace this endeavor?  For those who contend that rewarding those "selfless" telecoms who have acted in a most selfish manner is the proper way to proceed?  For them, for those in Congress who appear to be suspended a state of perpetual gullibility, for those who bought 935 lies and stand ready to buy hundreds more at the expense of the American people -- for them, there is no flag pin large enough to hide their shame.  There is no flag waving high enough to overshadow their misjudgment, and there is, above all else, no red, white, and blue excuse for blacking out the truth about how this government has treated its people.

Congress is back, and so is the fight over whether the nation's telecommunication companies--and the Bush administration--will skate on the charges of spying on American citizens without a warrant. If the Congress grants telcos the amnesty they and the administration are seeking, investigations on the scope of the illegal spying won't go forward, and we might never know the full extent of this administration's illegal activity against American citizens.

As Markos notes his column in today's The Hill, the Democrats have a choice of falling for GOP scare tactics one more time, or doing the right thing.

White House spokesman Tony Fratto gave us an idea of the kind of hyperbole we can expect when he warned, "We’re exactly three weeks away from the date when terrorists can be free to make phone calls without fear of being surveilled by U.S. intelligence agencies."

A terrific scare tactic, but dead wrong. No one thinks U.S. intelligence agencies should be denied surveillance capabilities.

The sole issue is whether outlaw telecommunications companies should be given a pass on their illegal behavior. And since President Bush has threatened to veto any FISA legislation without telco amnesty, it’s clear that he’s more concerned about Verizon’s checkbook than he is about our nation’s security.

Too bad Bush’s love is unrequited. Many FISA wiretaps were recently pulled by the supposedly heroic telcos because of the government’s failure to pay its phone bills.

The news that the telcos pulled their wiretaps because the weren't getting paid reveals two truths: the telcos aren't great patriots doing their duty for national security--they're greedy and willing to break the law if they can boost the bottom line; the Bush administration doesn't care enough about national security to pay the freaking bill for it and is using this issue as yet another bludgeon to beat up on Democrats.

Too many times we've seen the Dems capitulate at the mere threat of that bludgeon. It doesn't need to happen again, because that fear is baseless. Consider this recently release poll commissioned by the ACLU, (via Greenwald):

Majorities of voters on both sides of the political spectrum oppose key provisions in President Bush's proposal to modify foreign surveillance laws that could ensnare Americans, according to a poll released Tuesday.

The survey shows nearly two-thirds of poll respondents say the government should be required to get an individual warrant before listening in on conversations between US citizens and people abroad. Close to six in 10 people oppose an administration proposal to allow intelligence agencies to seek "blanket warrants" that would let them eavesdrop of foreigners for up to a year no additional judicial oversight required if the foreign suspect spoke to an American. And  a majority are against a plan to give legal immunity to telecommunications companies that facilitated the Bush administration's warrantless wiretapping.

"Across the board, we find opposition to the administration's FISA agenda," pollster Mark Mellman said Tuesday.

Last month, we generated over half a million calls and e-mails to Senate offices in support of Senator Dodd's filibuster of telco amnesty. We need to double that number this week. We need to tell our Senators that we stand with the majority of Americans in opposition to amnesty, and they should be more afraid of us voters than of a lame duck, failing president.

Particularly, those calls need to go to our presidential candidates. Again, Greenwald has details:

The three leading recipients of telecom money for this election cycle are, unsurprisingly, the three sitting Senators running for President (with two Democratic members who are key to amnesty -- Jay Rockefeller and Rahm Emanuel -- close behind). That's how "Washington works" -- the process they are all pledging to battle and change. Needless to say, all of the viable GOP presidential candidates will be blindly supportive of whatever surveillance powers and lawbreaking immunity the President demands, but thus far, Obama and (less emphatically) Clinton have both claimed that they oppose such measures and thus pledged to support a Dodd-led filibuster.

Clinton and Obama have reiterated that opposition this week in response to Markos's inquiries. But the Senators need to do more than issue statements. They need to take a break from their campaigns and spend a few days actually on the job that they currently have--that means physically standing with Chris Dodd in support of his filibuster. You can urge them to do that with this page set up by Working Assets. Matt Browner-Hamlin has more on that campaign.

Call or e-mail the Presidential candidates. Spend a few minutes of the time you would have spent squabbling about the campaign in some diary here on sending an e-mail, making a phone call. Contact the Presidential candidates and call and e-mail your Senators. Tell them to stand with the majority of the American people who demand accountability.

Looks like telecom amnesty is dead.

Via Chris Bowers at Open Left, the Wall Street Journal posts a whiny editorial on the the diminishing chances of telecom immunity being inserted into a new FISA bill:

We're told that Senate Majority Leader Harry Reid is saying privately he now won't attempt to update the 1978 Foreign Intelligence Surveillance Act (FISA) on the wiretapping of al Qaeda suspects. Instead, he'll merely support another 18-month extension of the six-month-old Protect America Act. Among other problems, the temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.