August 2007
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Day August 23, 2007

Congress Needs to Consider Retroactive Immunity for Telecom Companies…For A Price

I’m still pondering McConnell’s interview, discussed in the previous post, and it strikes me that he said something which opens a potential level for the Congress to use as an investigatory tool.

McConnell’s top priority for Congress on revising FISA legislation is gaining retroactive immunity for the telecom companies who have assisted the NSA with the illegal wiretapping program over the last five years:

Now if you play out the suits at the value they’re claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . .

The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We’ve got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was alright, look, we don’t want to work that right now, it’s too hard because we want to find out about some issues of the past. So what I recommended to the administration is, ‘Let’s take that off the table for now and take it up when Congress reconvenes in September.’ . . . No, the retroactive liability protection has got to be addressed.

Glenn Greenwald is right, I think this is the first time a top official has pretty much admitted the complicity of telecom companies in the illegal wiretapping program. And that gives the Congress a possible plan, an investigatory path into the lawlessness of this Administration, and beyond, into Executive overreach in general (as previously discussed.)

When Congress returns, it should re-convene hearings on the FISA legislation, especially since that “six month” clause forces them to re-authorize or re-examine. In the process, they should indeed address retroactive immunity for the telecom companies.

The price for retroactive immunity must be full, public, and complete cooperation by the telecom companies. Not disclosing technical detail; any hearings that require sensitive information as part of testimony will naturally follow the usual rules for classified briefings and testimony. But policy decisions and directives from the Administration and especially the White House must be fully and publicly disclosed. On the record, under oath.

No oath, no testimony, no immunity. And no CEO, after their respective boards of directors get done with them. Regardless of political affiliation, political donations, or ties of friendship, no telecom company CEO and its board will pass up the deal. Major shareholders, mutual funds, and the holders of corporate debt won’t let them.

And we’ll get the testimony and hearings we need in order to shape FISA law in accordance with both constitutional principles AND the exigencies of our current situation.

And we’ll see what happens once it’s all out, on the record. Everyone, even a President with the track record of this one, is innocent until proven guilty. But let’s just say the data isn’t trending in the right direction for Mr. Bush. Or will the Republicans decide this is their “Barry Goldwater visits the Oval Office” moment?

McConnell: Americans Will Die Because We Discussed Wiretapping….?

In recent comments to the El Paso Times, Director of National Intelligence Michael McConnell has apparently claimed that even discussing the legality of our wiretapping and electronic surveillance program will result in the deaths of Americans:

    Q: Even if it’s perception, how do you deal with that? You have to do public relations, I assume.

    A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we’re doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.

    Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?

    A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing. We need to have the debate.

This is a pretty bizarre twist on the whole wiretapping discussion, and really has to call into question McConnell’s own claims of being "apolitical."   Americans will die as a direct result of having Congressional debate on the subject?  Seriously?

Apparently, McConnell’s "reasoning" (and we’ll use that term loosely for the duration) is that debate in Congress informs our enemies about our tactics and capabilities.  Of course, there’s a point to secrecy about detailed capabilities and tactics, and Congress and the Executive Branch have in place practices for closed hearings and briefings, and for handling law-making concerning classified activities.  These practices appear to work, as far as any of us can really tell. 

But at a high level — the level we’d read about in the news — I’d be shocked to hear that anyone doesn’t know that the NSA routinely monitors electronic communications internationally, and has done so for decades, across many generations of technologies.  After all, the NSA is an outgrowth of WWII signals intelligence groups. 

Or we might assume that folks overseas, including perhaps the bad guys, had read James Bamford’s history of the NSA, "Body of Secrets:  Anatomy of the Ultra-Secret National Security Agency," (a good book by the way), or his previous book, The Puzzle Palace.  Or you could extrapolate from fiction and entertainment and watch the Will Smith/Gene Hackman action thriller Enemy of the State.   Or literally dozens, if not hundreds, of other sources. 

Really.  Seriously.  McConnell clearly knows, as the former director of the NSA itself, and a player in D.C., that (1) the bad guys know we tap phones, monitor email and other electronic transactions, and gather a variety of other non-human-source intelligence, and (2) Congressional debate will be on the legality and processes involved in authorizing such activities, not the details of the technology for acquisition and processing.

So nice try, Mr. McConnell, on the "I’m apolitical, just doing my job" bit.  I’m not buying it.  Your comments are, at best, a misstatement.  At worst, they’re deliberately inflammatory hogwash of the kind we keep seeing from this Executive Branch, which will say anything to avoid having oversight, rules, or statutory limits to its authority.