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?