(updated below)
Following up on Jim Risen's NYT article this week reporting that Congressional Democrats appeared likely to agree to some form of retroactive immunity for telecom companies which illegally enabled the Bush administration's warrantless eavesdropping on Americans (thus compelling dismissal most of the remaining lawsuits challenging the illegality of the eavesdropping), Newsweek's Michael Isikoff and Mark Hosenball reported the same thing:
Congressional staffers said this week that some version of the proposal is likely to pass -- in part because of a high-pressure lobbying campaign warning of dire consequences if the lawsuits proceed.
The Newsweek article sheds further light onto the reasons for its likely passage:
The nation's biggest telecommunications companies, working closely with the White House, have mounted a secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits against them for assisting the U.S. intelligence community's warrantless surveillance programs.The campaign -- which involves some of Washington's most prominent lobbying and law firms -- has taken on new urgency in recent weeks because of fears that a U.S. appellate court in San Francisco is poised to rule that the lawsuits should be allowed to proceed.
Among those coordinating the industry's effort are two well-connected capital players who both worked for President George H.W. Bush: Verizon general counsel William Barr, who served as attorney general under 41, and AT&T senior executive vice president James Cicconi, who was the elder Bush's deputy chief of staff.
Working with them are a battery of major D.C. lobbyists and lawyers who are providing "strategic advice" to the companies on the issue, according to sources familiar with the campaign who asked not to be identified talking about it. Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President George W. Bush who now represents AT&T.
While Gorelick claimed she is not specifically lobbying, she "confirmed that she is providing 'strategic advice'" to Verizon for obtaining immunity. But all of these firms and individuals are working in unison on behalf of telecoms, using the influence they acquired and the contacts they developed while working in government to pressure lawmakers to give their clients what they want:
According to three industry sources, these and other players have been conferring with each other over legislative strategy and targeting key lawmakers and staffers, especially those on the House and Senate Intelligence and Judiciary Committees. The lobbyists have set up meetings and arranged conference calls, pressing the argument that failure to provide protection to the companies could interfere with the vital assistance they say the telecom industry has provided the intelligence community in monitoring the communications of Al Qaeda and other terrorist operations overseas.
This effort would likely result in complete immunity not only for private telecom companies which broke the law, but also for Bush officials who did so as well. As Wired's Ryan Singel notes:
The legislative language in the administration's proposed language from April makes clear that the immunity provision applies to anyone -- administration employees included -- involved in the program and would even prevent any state or federal regulatory body or even Congress from imposing any penalty for anything related to the program.
Singel excerpts the relevant provision of the administration's draft immunity law (.pdf) which the administration and McConnell are demanding. It includes this unbelievably absolute amnesty for all post-9/11 lawbreakers:
[N]o action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.
This would mean that the Attorney General could simply decree in secret ("in a manner consistent with the protection of State secrets") that any lawbreaking relating to surveillance or other intelligence activities was "intended to protect the United States from a terrorist attack," and any liability for that lawbreaking, civil or criminal, would thereafter forever be prohibited. It would be absolute, sweeping amnesty for all individuals and entities, in government and in the private sector, who broke the intelligence and surveillance laws after 9/11. Neither Vladimir Putin nor Hugo Chavez have amnesty power of that sort. But that's what the administration and Mike McConnell are demanding, and it's what, at least as it pertains to telecoms, wonderful ex-Clinton officials such as the "highly regarded" Jamie Gorelick are working to bring about.
It is not, obviously, a revelation, but this practice of government officials leaving and then being paid to use their contacts to shape legislation on behalf of corporate clients is the sleaziest practice there is in Washington. Can't Jamie Gorelick find a way to earn a living without engaging in the lowest form of legalized influence-peddling on behalf of law-breaking telecoms which now want a bill which would almost certainly, in effect if not explicitly, also bar any accountability for Bush officials who broke the law when eavesdropping on Americans? (And it is worth remembering here that Qwest, unlike Gorelick's client, followed the law and refused to comply with the administration's demands to allow spying on its customers without warrants, even in the face of threats that they would lose government contracts).
It is hard to count the number of high Clinton officials who, like Gorelick, have spent the last six years getting rich selling their contacts and influence by working on behalf of lobbying and other clients to pursue legislation directly at odds with the political beliefs they pretended to have and will, once they are back in power, pretend again to have. Gorelick, needless to say, is an enthusiastic contributor to the Hillary Clinton campaign (as well as to Joe Lieberman's). She'll undoubtedly be a leading candidate for Attorney General in the next Clinton administration (perhaps serving along with Clinton supporter and "foreign policy expert" Michael O'Hanlon). Telecom lobbyist Donilon is also a maxed-out Clinton contributor.
It is hard to overstate how much of a priority FISA immunity is for the Bush White House, and for obvious reasons. Ironically, they were actually proposing the same sweeping retroactive immunity language back in September of 2006 when the Republicans controlled both houses of Congress, but they could not get the Congress to pass FISA legislation. With the Democrats in control of Congress, and Democratic Beltway influence-peddlers like Gorelick working with them, their chances of obtaining such legislation are now plainly enhanced, and according to both Risen and Isikoff/Hosenball, they are likely to obtain some form of retroactive immunity now that Democrats control Congress. There are reasons -- good reasons -- why the current Congress is more popular among Republicans than Democrats.
I believe it is this issue which also sheds significant light on the nomination of Michael Mukasey as Attorney General. In light of the fact that Mukasey is unquestionably independent of the Bush circle with admirers even among some of the strongest critics of the administration, the question naturally arises: why would the Bush administration possibly nominate an independent, basically honest individual as Attorney General?
The answer, in large part, lies with their desire for immunity from past FISA violations and other lawbreaking. As indicated, the legislation McConnell is touting empowers the Attorney General to provide amnesty when, in his sole discretion, he deems it to be warranted. Even Congressional Democrats would be reluctant to vest that amnesty power in Alberto Gonzales.
But their willingness to do so is almost certainly increased by having the administration claim that it now has an Attorney General of Honor and Independence whom Democrats can Trust. At the same time, given Mukasey's well-established reverence for broad executive power, it is almost certainly the case that he would conclude -- as most ideologically similar lawyers of his strain have -- that there is at least a good faith legal basis for believing the President had the power to violate FISA and that such violations were undertaken in good faith (to Stop the Terrorists). Amnesty, he would almost certainly conclude, would thus be warranted for all lawbreakers.
They were able to risk an outsider like Mukasey because, with 15 months left in the Bush presidency, there is only so much damage to them he could do, but on the issues that matter -- starting with amnesty from past lawbreaking -- Mukasey will be a potent instrument. When the administration sent Bill Kristol out to praise the Mukasey nomination the day before it was announced, that was, in essence, one of Kristol's principal arguments:
I for one don't know enough about Mukasey's constitutional views to be sure I'd recommend him for a lifetime Court appointment. Nor would he perhaps be the best pick for AG at the beginning of a term . . . But this is an appointment for the last fifteen months of an administration whose basic policies are set and which has few judges left to appoint.The most contentious fights over the next year are likely to be on war-on-terror issues. And as Andrew McCarthy (no liberal softy on such matters!) explained on National Review Online, Mukasey is first-rate on these . . . .
Judging also by what Mukasey has written and said outside the courtroom about the Patriot Act and related matters, we can be confident he'll be effective at making the case before Congress and the public for tough legislation and sound policies on national security issues.
And he'll be hard to challenge when he does so. Mukasey testifying on behalf of Bush's FISA legislation will be like Petraeus testifying on the surge. He'll be an able public spokesman because he can't be caricatured as a partisan apologist, and the Democrats won't be able to lay a glove on him.
So my advice is this: conservatives should hold their fire, support the president, enjoy watching Chuck Schumer hoist on his own petard, and get ready for a strong attorney general for the rest of the Bush administration.
The idea of granting blanket retroactive amnesty for private companies and high government officials who repeatedly broke the law in how they spied on Americans is the stuff of tin-pot third-world dictatorships. It is so corrupt and reprehensible that it ought to be beyond the ken of what could even be considered. But with an indescribably (and increasingly) accommodating Democratic Congress, along with Democratic power brokers like Gorelick working in tandem with telecoms and their Republican lobbyists to bring about such legislation, its passage -- as both the NYT and Newsweek are reporting -- is close to guaranteed. The MoveOn ad was terrible.
UPDATE: I thought the meaning of the last sentence was quite clear, but if enough people fail to understand what was written, the fault, at least partially, sits with the writer. Several commenters on the first page of comments explain the meaning. For those who do not want to look there, the sentence has nothing to do with a critique of the MoveOn ad.
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