What “Liability”?

Paul Kiel wrote an important post yesterday spelling out what a lack of immunity might conceivably mean for the telecommunications companies that helped the government spy on Americans.

Should damages be awarded, however, they would be awarded based on how many people the government, via the telecoms, surveilled illegally, not the number of suits, Opsahl said. EFF’s complaint excludes “foreign powers,” “agents of foreign powers” and “anyone who knowingly engages in sabotage or international terrorism” from the class.When I asked [Attorney Kurt Opsahl of the Electronic Frontier Foundation] what he thought likely damages against AT&T might be — if the suit was successful on all of its claims, a very big “if” (see below) — he said $13,000 per customer who was a victim of illegal surveillance.

Republicans–in an effort to accuse Democrats of pandering to trial lawyers (who have no stake in this fight) and to convince Americans that the government should protect the poor patriotic telecoms–have framed the immunity issue as one of “liability protection”. But that liability would only be significant if the telecoms had illegally violated the privacy of hundreds of thousands, if not millions, of Americans. And even then, there’s no hurry, because a judgment will not be forthcoming for years:

[A] final judgment, should one ever come, is years away. Right now, EFF is waiting for a decision from the Ninth Circuit Court of Appeals on whether the government can invoke the state secrets privilege to rebuff lawsuits challenging the program. It’s not clear when such a decision will come (they’ve been waiting for more than six months). Regardless of its outcome, that decision is likely to be appealed all the way up to the Supreme Court, Opsahl said, a process that could take years.If EFF is successful there, the next battle begins: government lawyers will likely argue that the President has the right, because of Constitutional powers, to ignore the Foreign Intelligence Surveillance Act. That will likely set in motion another decision, appeals and counter-appeals all the way up to the Supreme Court.

“Maybe, after we’ve been to the Supreme Court twice, we might go back down to the district court and actually begin litigating the case,” Opsahl told me. “The question of damages is a long, long way away.”

Not only is there no urgency, but there was another option: the substitution amendment, bitterly opposed by the White House, which would have mandated that the government–and not the telecoms–served as the defendant in any lawsuits stemming from the Warrantless Wiretapping Program. That may be why the telecoms themselves don’t seem particularly interested in securing immunity. Or, perhaps they’re not worried because, according to blogger bmaz (who’s been making a splash recently) they were likely indemnified by the government at the outset of any illegal surveillance.

In other words, the government is seeking to kill off a number of lawsuits, or potential lawsuits, against an industry that seems not to care–lawsuits which won’t be adjudicated for years, and which may result, ultimately, in small or non-existent penalties anyhow.

Remember, this is not just an example of the White House and the GOP going to bat for their corporate sponsors (though it may well be that). It’s a sub rosa effort to ensure that the details of their domestic spying activities are never revealed to the public.

See more tagged with: FISA, immunity and telecoms

Total Online Awareness

New questions have arisen about what, exactly, the government hopes to surveil. On Monday, Kenneth Wainstein, the Assistant Attorney General for National Security spelled it out:

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

Ryan Singel at Wired magazine thinks there’s something to this. “That would make sense,” he writes, “since email doesn’t go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email — which could be and often is from different parts of the world — think of any business traveler.”

And indeed, that would seem to be a big problem. Back in August 2007, an extremely large, bipartisan majority in Washington sought to make an extremely small, technical change to FISA to account for the fact that the NSA can’t know, a priori, where the recipient of a call will be located: Under the theoretical terms of the agreement, the NSA would be allowed to listen to calls of foreign origin making their way through a U.S. switch. If the recipient happened to be in a foreign country, surveillance could continue unmolested. If the recipient happened to be located in the U.S., then the NSA could either continue surveillance with a warrant, or minimize the data.

The email situation is, as Singel points out, much more complex. But there’s another reason to think that Total Email Awareness is the goal of this FISA fight, and that is that Director of National Intelligence Mike McConnell has said so himself. In a lengthy New Yorker profile last month, McConnell described the coming surveillance wars to reporter Lawrence Wright:

One day in May, at a meeting with the President and several cabinet members, McConnell asked for authority to wage information warfare against the tech-savvy insurgents in Iraq. First, he described the three aspects of information-warfare operations. Computer-network exploitation—that is, the theft or manipulation of information—is done by the N.S.A. Computer-network attacks are the province of the Department of Defense. The third element, computer-network defense, was not the specialty of any agency. According to someone who was in the Oval Office, McConnell then said, “If the 9/11 perpetrators had focussed on a single U.S. bank through cyber-attack and it had been successful, it would have an order-of-magnitude greater impact on the U.S. economy.” The President blanched and turned to the Secretary of the Treasury, Henry Paulson. “Is that true, Hank?” he said. Paulson said that it was. The President then charged McConnell to come up with a security strategy, not only for government systems but also for American industry and private individuals.One proposal of McConnell’s Cyber-Security Policy, which is still in the draft stage, is to reduce the access points between government computers and the Internet from two thousand to fifty. “The real question is what to do about industry,” McConnell told me. “Ninety-five per cent of this is a private-sector problem.” He claimed that cyber-theft accounted for as much as a hundred billion dollars in annual losses to the American economy. “The real problem is the perpetrator who doesn’t care about stealing—he just wants to destroy.” The plan will propose restrictions that are certain to be unpopular. In order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving government the authority to examine the content of any e-mail, file transfer, or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.’ ”

With the cyber-security initiative, McConnell is asking the country to confront a dilemma: Americans will have to trust the government not to abuse the authority it must have in order to protect our networks, and yet, historically, the government has not proved worthy of that trust. “FISA reform will be a walk in the park compared to this,” McConnell said. “This is going to be a goat rope on the Hill. My prediction is that we’re going to screw around with this until something horrendous happens.” [Emphasis mine]

I’ll make some inquiries about this, but at a glance the FISA fight may just be a bankshot way for McConnell to kick off his sweeping internet spying program while bypassing, for now, the proverbial goat rope.

See more tagged with: civil liberties and FISA

House Capitulation on FISA?

Speculation began on Saturday, and was refueled again today, that House Democrats, led by Intelligence Committee Chairman Silvestre Reyes, would figure out a way to–at the very least–make sure a telecom immunity provision becomes law. I haven’t been able to confirm any of this myself. More specifically, I’ve been told both that Reyes really is likely to lead a cave-in, and also that there’s no reason to think that will happen, but whatever the case is, we may find out as early as tomorrow. If, as the L.A. Times article suggests, we’re going to see a new bill or set of bills altogether, then it’s possible the whole thing will become tied up in the Senate. Again.

Glenn Greenwald has written an important post on the optics of all this, if, of course, the reports from the last two days prove to be correct.

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DOJ Anti-Contempt Attempt

It didn’t take anywhere close to a week. The Bush Administration has ordered the U.S. Attorney to ignore the House contempt citations. So it’s off to federal district court, where the House will seek a civil enforcement action. Speaker Pelosi’s reaction here. John Conyers’ here.

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Breaking: Contempt Citations Referred

Today House Speaker Nancy Pelosi took a major step forward on contempt. In a letter to Jeffrey Taylor, the U.S. Attorney for the Distrect of Columbia, Pelosi certified the subpoena breeches by Harriet Miers and Joshua Bolten:

The undersigned, The Speaker of the House of Representatives of the United States, pursuant to the attached House Resolution 979, One Hundred Tenth Congress, hereby certifies to you the failure and refusal of Harriet Miers, former White House Counsel, to appear, testify, and furnish certain documents in compliance with a subpoena before a duly constituted subcommittee of the House of Representatives Committee on the Judiciary. The undersigned further certifies to you the failure and refusal of Joshua Bolten, White House Chief of Staff, to furnish certain documents in the custody of the White House in compliance with a subpoena before said committee. These failures and refusals are fully shown by the certified copy of the House Report 110-423 of said committee which is also hereto attached.

In a second letter–this one to Attorney General Michael Mukasey–Pelosi demanded to know within one week whether the Justice Department plans upon forbidding Taylor from considering the charges.

According to the testimony of your predecessor, former Attorney General Alberto Gonzales, and your recent testimony before the House Judiciary Committee, the Justice Department intends to prevent Mr. Taylor from complying with the statute and enforcing the contempt citations against Ms. Miers and Mr. Bolten. You claimed that “enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a direct adviser of his… not to appear or when he directs any member of the executive not to produce documents.” Hearing on Oversight of the Dep’t of Justice Before the H. Comm. on the Judiciary, 110th Cong. 87-88 (Feb. 7, 2008). You purported to base your view on a “long line of authority,” but cited no court decision that supports this proposition.

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

Your press spokesman has stated that you will “act promptly” to review this matter and reach a final decision. We will appreciate your acting with appropriate dispatch on this important matter. I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim. If, however, you intend to persist in preventing Mr. Taylor from carrying out his statutory obligation to present this matter to the grand jury in the District of Columbia, we respectfully request that you inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.

And so, the constitutional battle begins. The letters can be accessed here.

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House Adjourns, PAA to Expire

The House adjourned without taking up FISA, meaning that, for at least a few days, they’re not giving in to the White House/Senate Republican demands.

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Senate Republicans Block Conference Committee

Minority Leader Mitch McConnell has objected to a conference committee between the House and Senate to resolve the differences between the two bodies’ FISA bills. The idea is that the House should just abandon all the work it has done on the RESTORE Act, and agree to the many different, more radical provisions in the Senate bill. That basically knocks the ball out of the Senate’s court. It’s either the Senate’s way or no way and that–at least for now–is up to the House of Representatives.

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Contempt Roll Call

Here it is. 223-32. With 173 members not voting and one voting present. Three Republicans broke ranks and voted aye.

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BREAKING: Contempt Citations Pass

The resolutions authorizing Speaker Nancy Pelosi to refer contempt citations to the U.S. Attorney passed in the House with 223 members voting “aye”. I’ll post the roll call when it’s available. This could lead to a showdown between the DOJ and the Congress (with the U.S. Attorneys office in the middle). Or the president could (laugh) cave and (laugh) provide the House with the documents and testimony they’ve subpoenaed.

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FISA Fearmongering Continues.

President Bush held a small press conference today at which he recapitulated many of the themes of this speech from yesterday:

The lives of countless Americans depend on our ability to monitor these communications. Our intelligence professionals must be able to find out who the terrorists are talking to, what they are saying, and what they’re planning.

To help our intelligence agencies do this, Congress passed the Protect America Act last year. Unfortunately, Congress set the law to expire on February 1st — and then failed to pass new legislation that would keep these tools in effect over the long run. And so at the 11th hour, Congress passed a temporary 15-day extension of the current law which will expire at midnight this Saturday. I signed that extension. I did so to give members of the House and Senate more time to work out their differences.

Bush said he would delay his trip to Africa to work with the House on FISA, and Pelosi has said she welcomes his input, but warns that she won’t be stampeded. Rep. Jerrold Nadler is on record saying that he would prefer to see the Protect America Act expire (restoring FISA, by and large, to its pre-August form) than to see the House cave to the White House on the Senate bill. Nancy Pelosi and Steny Hoyer seem ready to allow PAA to expire while they negotiate (for at least some time) a compromise with the Senate.

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