Editore"s Note
Tilting at Windmills

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March 2, 2008
By: Kevin Drum

INDEMNIFICATION....As we all know, the Bush adminstration is hellbent on passing a law granting telecom companies retroactive immunity for any surveillance laws they may have broken in the aftermath of 9/11. But there's an odd aspect to this whole thing: the telecom companies themselves don't really seem to be fighting all that hard on behalf of this legislation. Why?

A couple of days ago I got an email from commenter/blogger bmaz proposing an explanation for this. To be honest, I sort of blew him off at first without reading his argument carefully, which I now think was a mistake. There's some guesswork in what he says, but he's an attorney with considerable experience dealing with wiretapping cases and he suggests that the reason the telcos don't care all that much about the lawsuits being pursued against them is because they almost certainly signed indemnification agreements with the feds back in 2001. Such agreements would force the federal government to pay any legal judgments awarded in suits against the telcos:

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....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 email, bmaz put it to me even more strongly: "The general counsels and legal departments of telcos are extremely accomplished and always protect their company's interests meticulously. They 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."

In the Washington Post today, Dan Eggen and Ellen Nakashima talk to some of the people behind the telco suits, and they don't seem to think that potential payouts are the issue either — which is why the telcos are remaining fairly low key about the whole thing. Rather, it's the Bush administration that wants immunity, and they want it because they're trying to keep the scope of their wiretapping programs secret:

"I think the administration would be very loath for folks to realize that ordinary people were being surveilled," said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which filed the lead lawsuit, against AT&T.

....Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?

Answers to those questions, he said, might reveal that "everybody in the country" has had their phone calls "combed through, and lots of people will be outraged."

Obviously some of this stuff is guesswork, though pretty well-founded guesswork, and bmaz suggests that the press ought to show some interest in the possible existence of indemnification agreements. I agree. If they exist, it would mean the telcos have never been exposed in any way, and immunity would have no effect on their willingness to cooperate with the government in the future. It would also explain why the Bush administration was able to keep the telcos on board so easily even after the Protect America Act expired three weeks ago. Indemnification might be a good subject for some enterprising national security journalist to start prying into.

Kevin Drum 1:34 PM Permalink | Trackbacks | Comments (105)

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Comments

Precisely. The Bushniks didn't want the telecoms to get sued, because that would lead to the process of trial and discovery, and a lot of stuff would come to light.

Posted by: cajun on March 2, 2008 at 1:47 PM | PERMALINK

You think Republicans would be embarrassed by being the party of Big Brother.

But you'd be wrong.

Posted by: Jeffrey Davis on March 2, 2008 at 1:51 PM | PERMALINK

So who protects The People? The President and DOJ won't even answer subpeonas. And if The People are barred from the courts?

And another thing about retroactive immunity: If someone has already been injured by the government's invasions of privacy, how can Congress pass a law depriving them of their claim? Isn't that "taking" without just compensation?

Posted by: JC on March 2, 2008 at 1:51 PM | PERMALINK

Rather, it's the Bush administration that wants immunity, and they want it because they're trying to keep the scope of their wiretapping programs secret

We all told you this the last time you expressed your bewilderment on this issue, and the time before that, and the time before that...

You could learn a lot reading your own comment threads.

Posted by: shortstop on March 2, 2008 at 1:53 PM | PERMALINK

Since the advent of the internet, and accelerating under the auspices of this current administration, privacy has been peeled back in this country to the point where every email, blog-post, and even internet search can be viewed as incriminatory.

This slippery-slope of privacy loss has got to stop. There needs to be a real fight in this country for a "Privacy Bill of Rights" between what the government/private sector can know about you, and what they cannot. I have read somewhere that a solution can be for private citizens to "sell" their information to prospective companies. But, nevertheless, the line has to start being drawn, and we cannot go on towards the future taking our rights for granted.

Over time, it becomes easier and easier to let slip personal information to the private industry or government, but Congress should definitely pursue and start the ball rolling to rein in the advances made against our right to privacy. There may not be an explicit mention to this right, perhaps being alluded to in unlawful search and seizure, but I consider it not only fitting, but also necessary (in the same vein as private property rights), that the United States should ratify and pass a constitutional amendment to protect our privacy. With the increasing demands of globalization, there should be some standards inherent in what we can consider in the public domain.

Posted by: Boorring on March 2, 2008 at 1:55 PM | PERMALINK

Here's a simple question, though: wouldn't such "indemnification" be proof of a conspiracy to break the law, and hence be unenforceable?

If you contract me to beat up your neighbor, and then refuse to pay me, I can't very well take you to court over it, can I?

Posted by: Amit Joshi on March 2, 2008 at 2:06 PM | PERMALINK

Echoing Amit Joshi: while indemnity could protect the telco's from civil liability, how do they protect from criminal liability?

Posted by: Wapiti on March 2, 2008 at 2:21 PM | PERMALINK

I agree with Amit. I'm not a lawyer, but my understanding of the law is that you can't immunize yourself from illegal actions. The contract would be void as it is against public policy. Perhaps a contract attorney can speak to this.

Posted by: Tom P on March 2, 2008 at 2:25 PM | PERMALINK

I wonder if any Representatives and/or Senators have been shown any indemnification agreements (if they exist). They are bound to keep the terms secret but I'm sure there are some ways to signal their knowledge.

Posted by: CarlP on March 2, 2008 at 2:30 PM | PERMALINK

Kevin - Thank you; this is important to consider prior to irretrievably granting retroactive immunity.

Wapiti - In the first place, there is about zero chance of a criminal charge for the telco folks because they were assured, almost without question in writing, by Bush Administration certifications of legality and necessity. Quite frankly, that is probably an effective defense in the civil actions as well; but, of course, the Bush Administration will not let them plead this and have, in fact, asserted the states secrets doctrine to prevent just that.

Posted by: bmaz on March 2, 2008 at 2:30 PM | PERMALINK

While indemnification cannot protect from criminal liability, the only suits that have been filed are civil matters. In addition, does anyone think that the federal gov't is going to prosecute the telcos for illicit acts that the gov't itself pressured them to commit? The potential existence of indemnification provisions is huge in this dispute.

Posted by: Mike Lamb on March 2, 2008 at 2:31 PM | PERMALINK

Might also explain why, as Roll Call reported a couple days ago, Republicans who supported this retroactive immunity aren't being rewarded by the telcos.

Posted by: anonymous on March 2, 2008 at 2:43 PM | PERMALINK

A footnote to bmaz and JC: I don't think "takings" doctrine would apply to non-government action as we have here, even though instigated by government.

On the surface there *is* a clause that would appear to apply, the "ex post facto" prohibition. But my understanding is that it's always been interpreted as applying only to criminal laws. The test case goes back to the CT legislature rewriting a will, if I remember correctly. So unless the Supremes completely change their approach ("no wrong without a remedy" and all that, but not on Roberts's watch) and disallow it at some point, immunity would stick.

This whole line that "they won't cooperate without immunity" has always been such transparent codswallop-- FISA makes warrants so easy! But then look who's pushing this line: the only entity in the United States that refuses to comply with warrants, namely the bush administration.

Posted by: Altoid on March 2, 2008 at 2:50 PM | PERMALINK


Something has always puzzled me: suppose the NSA has, in fact, captured all my electronic communications since 2001; in what sense have I been "surveilled"?

Bear with me. If the government has captured all my communications because they have captured EVERYBODY's, then surely "the program" does not involve actually READING all that stuff. So the only possible value of collecting EVERYTHING is that you can go back and mine the archive AT LEISURE. That hardly comports with the ticking bomb scenarios Republicans are so fond of.

But even more fundamentally, consider the possible circumstances in which the NSA or any other agency might choose to go back and examine MY communications in particular:
1) They can articulate a GOOD reason why it's worthwhile to read my stuff. If they can articulate a good reason, they can write it down on a warrant request, can't they?
2) They can articulate NO reason. They're just doing it for fun. Seems like a good way to waste counter-terrorism resources, no?
3) They can articulate a BAD reason for reading my stuff -- i.e. my name shows up on a list of contributors to the Obama campaign.

It's that last bit that puzzles me most of all. Unless the NSA (and other agencies) plan to destroy their archive of collected communications on 20 January 2009, a President Obama will have access to Karl Rove's past communications, as well as mine. Why is the GOP so hot to have THAT happen?

-- TP

Posted by: Tony P. on March 2, 2008 at 2:51 PM | PERMALINK

Tony P. - Heard about the millions of missing emails? The Bushies aren't real good at keeping anything they don't want kept. Rove's information will not be left in the database; yours will.

Posted by: bmaz on March 2, 2008 at 2:58 PM | PERMALINK

My guess is that it's even worse than people suspect. The analysis would probably cross-reference against commercially available finance and credit data-bases. I think the thing that turns their bowels to ice water is that one of the things it would make sense to do would be to assigen everybody a score (co-efficient of Patriotism, Bushie-index, gullibility quotient...)

Posted by: wmcq on March 2, 2008 at 3:02 PM | PERMALINK

The immunity also protects government officials
who have requested and used illegal wiretaps, that's the real purpose of the immunity.

Posted by: daveN on March 2, 2008 at 3:02 PM | PERMALINK

the press ought to show some interest in the possible existence of indemnification agreements.

Well, you'd think so since they don't have to investigate John Edwards' haircuts anymore.

Really, Kevin, this is about 3 levels of complexity beyond what the press likes to deal with.

Posted by: tomeck on March 2, 2008 at 3:09 PM | PERMALINK

bmaz - Having been on a numbers of ends of these situations I not only feel your read on this is correct - I know it must be.

This point is made better elsewhere by bmaz [at emptywheel's joint] but just so folks here know: the arc of the career of an attorney who advises a major telco on compliance & co-operation with government wiretap orders is this: Clerk to a judge, work as an assistant US attorney long enough to know the territory in the dark, move into a firm that does criminal defense work & as well does or is connnected to a firm which acts for media, score some successes holding the government's feet to the fire, then into the client's business with the government. This cycle repeats & repeats & repeats due to the needs of the government & the telcos to stay current on both technology and law

[although the need for a firm grasp on the latter seems somewhat less since January 20, 2001].

Posted by: LabDancer on March 2, 2008 at 3:14 PM | PERMALINK

I always wondered why the legal departments for the telecoms would have ever agreed to widespread wiretapping that could leave the company open to legal jeopardy, no matter how unlikely, no matter how far down the road.

What your correspondent says makes sense. The telecoms and their legal departments agreed to no such thing. They only agreed if all the jeopardy falls on the government.

Posted by: nemo on March 2, 2008 at 3:22 PM | PERMALINK

I would think that Sylvester Reyes and the rest of the democrats-and republicans would be at least a little concerned about Karl Rove reading and listening in on their campaigns. And that corporations and universities would be a little concerned about trade secrets and intellectual property loss. I don't get it.

Posted by: Loo Hoo. on March 2, 2008 at 3:30 PM | PERMALINK

There's one aspect of this mess that nobody else has mentioned. George Walker Bush NEVER fights this hard for anyone's interest but his own. Look at his actions as President--the only time he takes a firm stand is when his own ass is on the line.

Because of that, I've just assumed that there's really bad mojo in all the confidential information that would come out if a civil case was ever allowed to proceed. So the bmaz scenario makes sense to me.

Posted by: Lifelong Dem on March 2, 2008 at 3:31 PM | PERMALINK

Just as an example of what Lab Dancer just described, take a look at this. It is the fascinating bio and info on William Barr, the current General Counsel for AT&T. He would also have been Attorney General of the United States under Bush41. The telcos know what they are doing, and always protect themselves; hell, they are so good and sure of themselves that they turn off the taps when the bill isn't properly paid pursuant to their agreements.

Posted by: bmaz on March 2, 2008 at 3:31 PM | PERMALINK

Look no further than who the General Counsel of Verizon is ... a former Attorney General of the United States ... William P. Barr

Posted by: anon on March 2, 2008 at 3:34 PM | PERMALINK

One aspect of this is very clear and is always ignored--the Republican Party was caught spying on Democrats in this case. The vehemence with which they attacked the NYTimes was over the top and the resulting firewall that has gone up around this administration--ignoring Congress, stonewalling oversight wherever possible, refusing to allow anyone to testify, and destroying millions of E-mails--what more do you need?

The advantages that Karl Rove has had in political matters since 2001 unravelled as soon as this matter was revealed. He lost his "magic" touch because he lost his ability to eavesdrop on Democratic politicians.

They want telecom immunity so that no lawsuits can go forward. If no lawsuits go forward, there is no "discovery" phase which will reveal what was collected and what it was funnelled into.

Why do you think a heretofor obscure entity like the office of the Vice President set up their own intelligence collection and analysis section? You know, the one that is not part of the Executive, not part of the Legislative and exists as the intelligence gathering apparatus of a "Fourth Branch" of our government? That section is behind a firewall that cannot be penetrated without something more serious than a request from Congress--it needs to be penetrated by the Department of Justice, acting on behalf of someone who is pursuing a case against a telecom company. The intel gathering in the Office of the VP was designed to operate outside of the normal channels but likely received intercepts from Democrats and any other political enemy of the administration.

We're supposed to believe they were brilliant until this was revealed to be going on? And they've been running on the rims in the ditch since then? In 2004, they were the people of the permanent Republican majority. Then, the NYTimes article hits and they haven't gotten one political victory of significance since then, except for maybe obstructionism, and that's a coincidence?

The NYTimes shut them down--they had to stop eavesdropping and listening in because they knew they were caught. The only thing that ends the "discovery" possibility and would then involve Federal investigations is telecom immunity.

People like Dodd and Feingold KNOW they were eavesdropped upon--that's why they're pushing back.

Wake the fuck up, people. It's not like we didn't see this coming.

Posted by: Pale Rider on March 2, 2008 at 3:41 PM | PERMALINK

Pale Rider says, "That section is behind a firewall that cannot be penetrated without something more serious than a request from Congress"

And speaking of firewalls, what do we know about that fire in the fourth branch?

Posted by: on March 2, 2008 at 3:47 PM | PERMALINK

They better jump on it because Rep. Reyes sure sounded like he was about to cave this morning on Late Edition.

This would also show why Sen. Rockefeller is so eager to get this off the table because he knows he will look foolish for not doing his job. This is legacy hunting.

However, the Washington leak is the most powerful antiseptic..and I predict the minute lawsuits are stopped, if they are, the floodgates will open.

This is too important..

Posted by: justmy2 on March 2, 2008 at 3:47 PM | PERMALINK

The intel gathering in the Office of the VP was designed to operate outside of the normal channels but likely received intercepts from Democrats and any other political enemy of the administration.

Purely domestic, political surveillance would not have a colorable state secrets claim, either. The magic bullet to make these comms surveillance cases go away so far might not work.

It's Cheney. It's always Cheney. Plame was Cheney.

Posted by: Davis X. Machina on March 2, 2008 at 3:48 PM | PERMALINK

Carl P. You have hit the nail on the head, in my opinion. When DNI MCConnell appeared before the Senate Armed Service Committee last week, Chairman Levin asked him about "indemnification" multiple times, I think, in connection with a possible fix that is not immunity. McConnell played "dumb" each time, feigning that he is not a lawyer so didn't know what that meant. Levin knows, I am sure, and was letting them know he knew.
Not that it will make a bit of difference. Glenn Greenwald thinks the deal's done; note his post today at Salon.

Posted by: Carol Gee on March 2, 2008 at 3:49 PM | PERMALINK

The real question, Kev, is, are you going to now stop being a squish and start getting hellbent about immunity?

Shortstop is right. Pale Rider is right. Bmaz is right. But, Kevin is still slowly waking up, and still won't tell us that he's finally "hellbent."

Posted by: SocraticGadfly on March 2, 2008 at 3:58 PM | PERMALINK

I think it's clear that the telecoms don't need protection. But does Bush really need it? Could he not issue an executive order to destroy the evidence? Given the missing email issue, there's obviously a precedent for him to destroy evidence. And it hasn't really bothered anyone outside the liberal blogosphere. I'm starting to think that Bush may not even care at all. He's just using this issue to keep the debate off the Democrats' turf. Would he rather talk about why he wants to torture people? Probably not. It's an effective diversion. And maybe that's all it is.

Posted by: fostert on March 2, 2008 at 4:04 PM | PERMALINK

And you know what else?

Every time they catch a "terrorist" they trumpet the arrest and practically go out of their way to "reveal" how they caught them.

Warrantless wiretapping hasn't caught anything except a whole lot of scrutiny they didn't expect and are shitting themselves over.

Posted by: Pale Rider on March 2, 2008 at 4:06 PM | PERMALINK

I apologize if this was stated earlier but your post might explain why the Bush Administration was opposed to the Specter amendment I read about. It would have transferred liability from the phone companies to the government thus allowing the lawsuits to continue.

Posted by: Lew on March 2, 2008 at 4:13 PM | PERMALINK

demnification would create perverse incentives if a telecommunications company were found liable. The company would have no incentive to object to large damages and penalties. Further, knowing that taxpayers would pay any damages and penalties, some courts and juries might inadvertently be more inclined to find liability in the first instance. Plaintiffs, most of whom claim little interest in financial rewards, might receive kingly ransoms, all at the taxpayer's expense.

Indemnification would not stop the FISA trials against private companies; indeed, they might expand. Indemnification would not reassure private parties to cooperate with the federal government under FISA in the future; it would do just the opposite. To add insult to injury, the American taxpayer would be asked to foot the bill.

Some investors will watch the Judiciary Committee tomorrow. If the committee adopts indemnification, investors will conclude that there must be a better industry — and perhaps country — for investments.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He is organizing a seminar series at the Hudson Institute. He can be reached at hfr@furchtgott-roth.com.

Posted by: Jet on March 2, 2008 at 4:14 PM | PERMALINK

Lew @ 4:13 - That is exactly the whole point here, the Bushies have already agreed to indemnification, but that still lets the lawsuits proceed and THAT is what they are really worried about.

Jet - Indemnification would never be disclosed to the jury and would not be part of the trial; it would simply obligate the government to pay for any telco losses after a verdict was imposed. And, secondly, indemnification agreements contain both express and implied language requiring good faith efforts and fiduciary like duty on the part of the party being protected, in this case the telcos.

Posted by: bmaz on March 2, 2008 at 4:22 PM | PERMALINK

Not only the telecoms, but also consulting companies. See who runs the intelligence game and where they used to work at...

Posted by: anon on March 2, 2008 at 4:25 PM | PERMALINK

I know this is meaningless to the current administration, but an indemnification or hold harmless agreement with the telcos would be illegal, a violation of the Appropriations Act. Again, I don't expect that to stop the Bushies, it never has before.

Interestingly, the potential punishment for any official that violates the Appropriations Act and signs an indemnification agreement is that that official can be held personally liable for the incurring obligation. So maybe that's why the Bushies are so adamant about immunity, some of their officials could be held responsible for paying the indemnification.

Posted by: BDB on March 2, 2008 at 4:43 PM | PERMALINK

BDB - Normally and generally that would be the case, but is you read the article Kevin bases this on, it provides citations to the specific statutes and provisions that permit just such agreements as I have suggested. Normally, you would be correct, but not here.

Posted by: bmaz on March 2, 2008 at 4:55 PM | PERMALINK

and even though the vote on this was Feb 12th- the day of the Potomac Primary so all the candidates were in town and available -- Sen Clinton did NOT show up for this vote

Sen Obama and Sen McCain both did -- Obama voting against immunity and McCain voting for-

But why didn't Sen Clinton vote?
Later that day, Sen Clinton issued a statement in support of the Feingold-Dodd bill --

Maybe this is why Feingold voted for Obama in Wisconsin and Dodd endorsed Obama last week

Posted by: alison on March 2, 2008 at 5:03 PM | PERMALINK

What I posted was from an article in 2007,,I undertand what your saying bmaz just wanted to point out this issue is not new.
http://www.nysun.com/article/65990

Posted by: Jet on March 2, 2008 at 5:03 PM | PERMALINK

Jet - I figured that was where that was from. The guy who wrote that article for the Sun is a big business and telecommunications shill and most of the legal statements he makes in said article are both dishonest and disingenuous. Irrespective of that, however, I believe indemnification has already occurred; so he is a bit behind the actions.

Posted by: bmaz on March 2, 2008 at 5:19 PM | PERMALINK

Pale Rider: Wake the fuck up, people.

No one is arguing with you, hon.

Posted by: shortstop on March 2, 2008 at 5:47 PM | PERMALINK

It's pretty much a given that the telcomms provided access to the phone trunks without any compliance with FISA. The risk in doing that, in agreeing to provide access to electronic communications without a warrant, were enormous. Bmaz is clearly right: it would be a violation of fiduciary duties to permit that level of exposure without protection from some entity capable of making protection stick.

Posted by: masaccio on March 2, 2008 at 6:10 PM | PERMALINK

Part and parcel of indemnification is to specify that the legal defense be controlled by the entity giving indemnity. Otherwise inadequate defense would be mounted. This is the embarrassment of the matter escalating in the courts. Defense being obviously done by the justice department would not look so good.

Posted by: YY on March 2, 2008 at 6:13 PM | PERMALINK

The only real reason I can think of to insist upon telcom immunity, especially if there is merit to indemnification, is standing. Since there is immunity there is no redressability, no redressability means no standing, thus no court can hear the case and rule this obvious violation of the 4th amendment unconstitutional. This is a blatant constitutional violation, but if a court can't here it the checks and balances are removed.

Posted by: JWilson on March 2, 2008 at 6:49 PM | PERMALINK

"The Bushniks didn't want the telecoms to get sued, because that would lead to the process of trial and discovery..."

A process they would potentially have to PAY for, if I'm reading this post right.

Posted by: Kenji on March 2, 2008 at 6:53 PM | PERMALINK

I think the simpler reason telecoms are not actively promoting this is IT WOULD BE AN PR DISASTER!

Many good points in this thread - IANAL

Follow the money - TELCOMS ARE GIVING TONS - certainly they have any number of issues they advocate for.

I think they know that money speaks louder than words and that they can get what they want by quietly giving.

SO HOW MUCH DOES OBAMA HAVE FROM THEM ANYHOW?

Posted by: little bear on March 2, 2008 at 6:56 PM | PERMALINK

How many times do you have to beat Drum over the head with how many good arguments coming from how many credentialed people before he finally floats something that could be attacked as a "conspiracy theory"? Just wondering.

A good, informative post, which come pretty seldom these days when a chart isn't attached.

Posted by: MG on March 2, 2008 at 7:29 PM | PERMALINK

I believe the Democratic bills already grant immunity for telecoms for actions FOLLOWING 9/11. The battle is over immunity for enabling domestic eavesdropping BEFORE 9/11.

And reember, the Bush administration didn't even have terrorism on their radar before 9/11 - which is why it happened. But they did in a very big way have their whole permanent majority scheme on their radar.

It isn't about 9/11 at all, it's about illegal domestic wiretapping.

Posted by: Dave Johnson on March 2, 2008 at 7:32 PM | PERMALINK

I also love the twisted brain-damaged logic that Bush uses to justify this, while taking his usual line that anyone who opposes his schemes is 'for the terrorists'..

"Hey I need you to pass this 'Helping Telecommunication Carriers attack America Act' because if they aren't free to commit crimes against you - not that they ever would or ever have, certainly not!!.. if Telecommunication Carriers aren't free to attack Americans then the danger is the terrorists may.. attack Americans! And we cant let that happen, not on my watch!"

There already sufficient evidence of criminality ( Bush and his aides admitting illegal wiretapping is going on, techs providing testimony of secret rooms full of secret equipment that they have been asked to connect all their data circuits via, etc etc ) to issue arrest warrants for all concerned. Why is this not happening?

Posted by: Eponymous on March 2, 2008 at 7:34 PM | PERMALINK

Dave Johnson - You are right that it is about illegal domestic wiretapping, but not just before 9/11 although there is now good information that it did, indeed, start well before 9/11.

You are wrong, however, in that is my understanding that the current Senate bill, which is the Bush template, is only written for things after 9/11. This is easy to explain; there are no plaintiffs from any acts occurring before 9/!! that ever had knowledge or standing to sue, and now the statute of limitations has expired. So they have no fear of lawsuits from prior to 9/11. And theyt have no fear of lawsuits subsequent to the effective date of the Protect America Act either. It is entirely about the 40 some odd, almost all consolidated, cases currently pending; that is it, none before, none since the PAA.

Posted by: bmaz on March 2, 2008 at 7:42 PM | PERMALINK

Eponymous - So you are intimating that what Bush really means is that "If you don't pardon these telcos for their past crimes, they won't help me with new ones!"

Posted by: bmaz on March 2, 2008 at 7:45 PM | PERMALINK

Wow, if the telecoms already have contractual indemnification that is a huge story, since the Senate Intel Committee is considering (but leaning against) providing indemnification by statute and has taken testimony from the DoJ arguing against it. Quite an elaborate BushCo charade, having the Senate consider indemnification already granted, and having DoJ fail to disclose that.

Let's see:

Kenneth Wainstein, assistant attorney general for national security at the U.S. Department of Justice, strongly discouraged politicians at Wednesday's hearing from endorsing anything but blanket immunity for the communications companies. He said protecting communications providers from lawsuits is important to national security as a whole because "every little nugget of information that comes out in the course of this litigation helps our enemies."

...

Indemnification would also be the wrong approach, Wainstein said, because it would still require communications companies to go through the process of litigation. He argued that could potentially inflict damage to their corporate reputations--or even endanger employees working overseas if terrorists or surveillance targets catch wind of the role those companies are playing. Furthermore, he added, forcing the government to foot the companies' legal bills would be an unacceptable burden on American taxpayers.

Or here is a Senate Republican memo discussing indemnification and advising against it:

Under indemnification, the United States would compensate private carriers for any liability incurred as a result of TSP-related litigation. This proposal has failed to gain much support for several reasons. Even under indemnification there would be considerable litigation costs for private carriers. Because of the government�s state secrets privilege, they would in most cases be barred from providing the evidence needed to substantiate their defenses. Indemnification would incentivize trial lawyers seeking �deep pockets� to structure complex and costly litigation that promises a high possible return even where the probability of succeeding on the merits is low. Indemnification would presumably not compensate carriers in the case of a pre-judgment settlement, but they might settle anyway, at enormous cost, to protect vital business interests.
Finally, the danger to national security from revelation of sources and methods, and to the carriers and their employees from revelation of information about a carrier�s assistance to the government, might vastly outweigh the benefits to plaintiffs.

I have no doubt this was all carefully researched by bmaz and K Drum prior to posting.

Posted by: Tom Maguire on March 2, 2008 at 7:46 PM | PERMALINK

I thought the anti-deficiency act (31 U.S.C. § 1341) barred open-ended indemnity agreements with the US Government, like the ones discussed here.

http://www.law.cornell.edu/supct/html/94-818.ZO.html

Well, I suppose there is probably some "wartime" exception being invoked . . . .

Posted by: lupe on March 2, 2008 at 7:48 PM | PERMALINK

Follow the money - TELCOMS ARE GIVING TONS - certainly they have any number of issues they advocate for.
I think they know that money speaks louder than words and that they can get what they want by quietly giving.
SO HOW MUCH DOES OBAMA HAVE FROM THEM ANYHOW?

You haven't been paying attention--the telecoms ARE NOT paying anyone off with campaign contributions--the Republicans revealed through a back door leak that they are upset that more money isn't coming their way. The expected payoff was going to be to the NRSC and the NRCC--both are lagging in fundraising. Both see a disaster this fall. Boehner is screaming at the members to raise money and contribute but no one is going to throw good money after bad.

Obama, on the other hand, seems to be raising a hell of a lot of money through one-time small donors.

This is what I mean by "wake up." Too many people are so misinformed and distracted by the wrong thing--it's the illegal shit, stupid.

Why do you think Ashcroft freaked out? Ask yourself that one simple question--why did Ashcroft and his deputies erect a barrier between themselves and the administration by refusing to sign off on the program? Because it was not about terrorists--it was about the illegal eavesdropping on the political enemies of the Bush administration.

Plain and simple. Right there before everyone's eyes. And no one dare speak of it. But to assume I'm wrong is to assume Karl Rove wouldn't break the law to get an advantage over his opponent. Wasn't the proven criminality in the Office of the Vice President enough?

Posted by: Pale Rider on March 2, 2008 at 7:48 PM | PERMALINK

That the spying by the Bushies is pervasive and wide-spread is more than “guesswork”, given the recent revelation that the FBI now has 900.000 names on terror watch list.

I wouldn’t be surprised if everyone who comments on this blog is on it!

Posted by: The Conservative Deflator on March 2, 2008 at 7:52 PM | PERMALINK

I wouldn’t be surprised if everyone who comments on this blog is on it!

And has been for years. Some have even received visits from the Feebs, as a matter of fact.

At one point, the number of people criticizing the Bush administration was large but ostensibly watchable. Now, it's a churning, endless sea of humanity, bitching, bitching, bitching, and keeping an eye on us all is like trying to catch seawater in a sieve.

Whew, sorry. Don't know what got into me with that florid prose. I blame a stressful weekend.

Posted by: shortstop on March 2, 2008 at 7:56 PM | PERMALINK

Follow the money - TELCOMS ARE GIVING TONS - certainly they have any number of issues they advocate for.

No, they aren't. Staffers are whining to lobbyists about the lack of donations, in fact.

Posted by: Blue Girl, Red State on March 2, 2008 at 7:57 PM | PERMALINK

Whew, sorry. Don't know what got into me with that florid prose. I blame a stressful weekend.

Never apologize for hitting the nail on the head.

Posted by: Blue Girl, Red State on March 2, 2008 at 8:01 PM | PERMALINK

You know, The Inexcusable Lapels would be a great name for a band...

Posted by: on March 2, 2008 at 8:04 PM | PERMALINK

That was me - I forgot to put my name info in...

Posted by: Blue Girl, Red State on March 2, 2008 at 8:05 PM | PERMALINK

bmaz said the telecoms are not worried about cases resulting from pre 9/11 acts because the statute of limitations has expired.

I thought the statute of limitations expires after 10 years. Perhaps there is a different statute for these matters. Clarification welcome.

Posted by: rational on March 2, 2008 at 8:06 PM | PERMALINK

I have been reading as bmaz has advanced his position for several days. His indemnity argument always sounded good, but I wasn't really convinced until I read that the GOP is bitching because the Telecoms aren't giving much this season. That was all the confirmation I needed. The only people who are making a big deal out of Telecom Immunity are the Bush administration and the Republican politicians who were probably reading Democratic mail. Too bad the mainstream media isn't in bed with the Telecoms.

This could blow the top off of the Bush administration and go a long way to restoring freedom to America.

Posted by: corpus juris on March 2, 2008 at 8:35 PM | PERMALINK

Altoid, Why is the government's retroactive "taking" away of my damages claim any different than "taking" the front 30 feet of my propoerty for a wider road?

Posted by: JC on March 2, 2008 at 8:37 PM | PERMALINK

rational, bmaz is arguing that the telecoms got the administration to sign an indemnity (hold harmless) agreement before they would do anything. It isn't a statute of limitations argument.

Such agreements with the government are generally unenforceable without express Congressional approval because only the Congress has the power to appropriate money and the executive can't bind the government to spend money unless Congressionally approved. Bmaz says there is a statutory way around that requirement.

Posted by: Corpus Juris on March 2, 2008 at 8:40 PM | PERMALINK

Actually, rather than an enterprising reporter, an enterprising stock analyst should go to AT&T and ask senior management whether they already have immunity.
The execs won't lie to the analysts. If they do, they can be accused of manipulating the markets, and that's one fast ticket to Club Fed.

Posted by: RZ on March 2, 2008 at 8:54 PM | PERMALINK

Corpus Juris - Here is the part of my post that addresses that:

"The President has the authority under 50 USC 1431 et seq. to authorize exactly the type of immunity agreements that are described herein, and, furthermore, to promulgate specific rules (including secrecy and classification, see 50 USC 1433) for their implementation. Now, it should be noted that one of the provisions of 50 USC 1431 is notification of Congress, specifically the respective Armed Services Committees, if the amount in question exceeds 25 million dollars. It will be interesting to see if this was, in fact, done or if the Administration disingenuously took the position that there was not yet an amount in controversy because there was not yet any known or set amount of indemnified liability (which is my bet under both a reading of 1431 and 1432(f)) and has kept this under their belt with the exception of limited disclosure to the Gang of Four/Gang of Eight as discussed here. In either case, this is potentially an explanation for why even the Democratic Congressional leadership has been compliant in ramming through passage of immunity; they don't want the public to find out that they signed off on massive liability to be paid out of taxpayer's pockets."

RZ - That information would be classified and therefore a crime to disclose to stock analysts, so non-disclosure would not create any criminal liability.

Posted by: bmaz on March 2, 2008 at 9:07 PM | PERMALINK

As was recently disclosed, the only reason that the telecoms will NOT play ball is if they don't get paid. Several FBI wiretaps apparently got shut down when the bill didn't get paid... The telecoms pay big money for a staff of attorneys who work to keep them out of trouble. Considering, too, that there is a huge army of shareholders who would skin anyone who dared to threaten their investments, I think it is pretty safe to say that the telecoms had indemnification agreements in place.

Instead, we have some elected officials who thought they could just disregard the laws that have stood for years to protect the privacy of US citizens. These same elected officials have suddenly awakened to the fact that they will be in massive legal trouble in the future because of what they have done. So, they have to cover their butts, and this is the only way to do it.

I pray that I get to see these guys serve some time in prison and find out what US justice is really all about.

Posted by: Sojourner on March 2, 2008 at 9:38 PM | PERMALINK

This indemnification seems to be just a theory now. But perhaps the Dems should propose a bill to indemnify the telcos, allowing suits to continue. Simply bring the deal out in the light and expose Bush's duplicity

Posted by: JohnH on March 2, 2008 at 10:27 PM | PERMALINK

JohnH - Uh, that has already been proposed, and the Bush Administration stated unequivocally that anything less than full retroactive immunity was unacceptable and would be vetoed. So, what you just stated has, in fact, already occurred.

Posted by: bmaz on March 2, 2008 at 10:33 PM | PERMALINK

This ex post facto administration and its byzantine attempts to make lawful what was illegal when perpetrated. Kids today. Wow. We have been let down on a grand scale by our representatives. When will Congress resume interest in the people? The administration believes it is beyond oversight. 9-11 conspiracies are less wild than the known-knowns. The right-wing nuts have brought us a nightmare.

Posted by: Sparko on March 2, 2008 at 10:53 PM | PERMALINK

Nice work Kevin! You're on your game today! :)

Posted by: CB on March 2, 2008 at 10:57 PM | PERMALINK

"You think Republicans would be embarrassed by being the party of Big Brother.

But you'd be wrong."

Posted by: Jeffrey Davis on March 2, 2008
---------

This Bush behavior has to be shocking to many Republicans, especially I think the more Ron Paul supporters.

They believe deeply in the Constitution and not straying from it EVER.

The deficits and growing national debt have to be very troubling too. What kind of Republican who has preached fiscal responsibility and 'small government' would allow such a thing? How can a Ron Paul supporter continue to see the Republican party as the standard bearer for their world view?

It's got to be very upsetting to them because they have been tied to the Republican party for many years and now comes a time when it just doesn't make sense any more. It's a jarring reality that the reality (offered by this administration) doesn't fit with their view of the party, it's ideology, the Libertarian view and how the Libertarians have been hitching their horse to the Republican wagon.

How can a Libertarian ever trust the Republicans ever again?

Now comes John McCain and his bevy of lobbyists and endless support for the war in Iraq. Most Libertarian-Republicans see this as unConstitutional and outrageous. For the Republican party's standard bearer to be the foremost supporter of the war aside from George Bush and Joe Lieberman makes it clear the Republican party is not what it appeared (to many Libertarians.

I commiserate with them because there are many within the Democratic Party who are as upset (at times) about the processes by which our nominee is picked and who is picked. Many on the Left think about 'moving out' and finding a new residence in the Green Party. The mood isn't terribly strong this year, but it's always there when Big Money runs our party.

On the Right the Libertarians need a way of standing apart from the major parties when they're truly not being represented. Does John McCain really represent the Libertarian view?

Posted by: MarkH on March 2, 2008 at 11:24 PM | PERMALINK

Well, it looks like Silvestre Reyes is a sellout on telecom immunity.

All you people who are going to bitch now but still vote Democratic in November, raise your hands.

I thought so.

Posted by: SocraticGadfly on March 2, 2008 at 11:25 PM | PERMALINK


"Answers to those questions, he said, might reveal
that "everybody in the country" has had their phone
calls "combed through, and lots of people will be
outraged."

I think it's even more likely that it would be
revealed that the Bushies had been spying specifically
on their political opponents (just like Richard Nixon).

Posted by: Terry on March 3, 2008 at 12:00 AM | PERMALINK

Semi-off-topic, but did anyone see 60 Minutes tonight, specifically the section on the ray-gun weapon?

It was all obstensibly about using these weapons in Iraq, but their demonstration used mock peace protesters carrying signs like 'World Peace' and 'End the War'. I found it all slightly disconcerting, especially the part where they say they need a real live field 'test' before they will get approval to deploy overseas...


Posted by: kis on March 3, 2008 at 12:03 AM | PERMALINK

Assuming Kevin's source is correct, if the telecoms don't get immunity, there will be large class-action lawsuits leading to big payments to the law firms bringing these suits. We citizens will pay the cost of enriching the lawyers.

Posted by: ex-liberal on March 3, 2008 at 12:51 AM | PERMALINK

But, wait a minute....if inidemnified, why did Quest refuse to cooperate with the Administration? USA Today reported that: "Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services -- primarily long-distance and wireless -- to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area."

Later Joseph Nacchio argued that he was being prosecuted by the Administration because his company didn't play ball. (He was charged with and tried on insider trading charges. Convicted as I recall.) Part of his defense was that he had refused cooperation and the prosecution was in retaliation. (I'm not suggesting this is true, but it's even less convincing if Quest had been indemnified in advance.)

What do the corporate lawyers think of this?
KB

Posted by: KB on March 3, 2008 at 12:57 AM | PERMALINK

Assuming Kevin's source is correct, if the telecoms don't get immunity, there will be large class-action lawsuits leading to big payments to the law firms bringing these suits. We citizens will pay the cost of enriching the lawyers.


BZZZZZTTTTT!!!!!!!!!!!

The cases are being brought by non-profits like the ACLU and the EFF, not Vinson-Elkins. But you know that, you are just an ever-more desperate neocon bagman.

Among other things that have been amply displayed right here in these very threads.

Posted by: Volatile Compound on March 3, 2008 at 12:57 AM | PERMALINK

KB, there may be lawsuits against telecoms by civil liberties organizations, but there are also class action suits. E.g.

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans' communications. In May, 2006, many other cases were filed against a variety of telecommunications companies. Subsequently the Multi-District Litigation Panel of the federal courts transferred approximately 40 cases to the Northern District of California federal court.

https://www.eff.org/cases/att

Posted by: ex-liberal on March 3, 2008 at 1:23 AM | PERMALINK

For all this debate about immunity for the telecoms my more immediate concern is that the Senate has already caved in (again) and passed a bill allowing further eavesdropping on U.S. citizens without judicial oversight. That this was done with Senator Rockefeller's (D) endorsement is just further proof that neither party is willing to go to bat for privacy rights. The House will fold on this, it will become law and I have severe doubts any of the current candidates will do anything to repeal it should they become President. You can vote for "change" or you can vote for "experience" but either way the government is still going to data mine your email and monitor your cell phone calls. Welcome to 21st century America.

Posted by: JE on March 3, 2008 at 3:00 AM | PERMALINK

It should also be pointed out that this 'eavesdropping surveillance' began BEFORE 9/11 at the request of GWB. That is a fact that has not been much talked about.

Posted by: Merg on March 3, 2008 at 5:09 AM | PERMALINK

The premise of this post - why aren't the telecoms doing anything - would be even more compelling if they were not on the verge of sweeping the board. They already have the Administration on their side, about seventy votes in the Senate, and , the House on the verge of surrender.

And Kevin considers this a failing strategy?

Meanwhile, maybe bmaz et al can explain this puzzling testimony to the Senate Judiciary Committee last October from Patrick Philbin (folks will surely remember Philbin as one of the heroes who stood by Comey when he faced down Gonzales and Card in Ashcroft's hosipital room over renewal of the surveillance program). Philbin was the DoJ expert on the program, but is now in private practice since Cheney blcked his ascent at Justice. Dare we imagine that if the telecoms have been indemnified already he would know? Yet he told the Senate this:

EXCERPT:

SEN. SPECTER: That is both commendable and rare. So thank you. But why not indemnification? Will there be realistic losses to the government by these lawsuits, which will be defended by every procedural device known?

MR. PHILBIN: I don't think that the problem with indemnification as a solution is ultimately the payout of money. That's not the concern. The problem with indemnification is the lawsuit still has to proceed with the carrier as defendant. So the carrier is bearing all the burdens of litigation, which are significant.

SEN. SPECTER: But there's a motion to dismiss on grounds of state secrecy. The carrier never appears.

MR. PHILBIN: And if state's secrets had really been cure all -- a silver bullet for these cases -- they would be gone by now, I think. I mean, they've been pending for two years.

SEN. SPECTER: Well, what's happening with them? Has anybody collected anything?

MR. PHILBIN : That's part of my point, Senator, is that it's not the money that is really the problem here. It's part of the problem, but it's the burden of the litigation itself. The cost of going through the litigation itself, reputational and other harm to the companies of going through the litigation, and damage to the United States in the form potential leaks of national security information during the litigation.

SEN. SPECTER: What information is going to be disclosed? We couldn't even get it disclosed to the chairman of the Judiciary Committee.

MR. PHILBIN: That, Senator, though, is based on a decision of the executive that the executive was in control of. This will be a decision by an Article III judge. And there's one Article III judge that in one of the cases already rejected the assertion of the state's secrets privilege, because a certain amount of what has become known as the terrorist surveillance program was already publicly described.

SEN. SPECTER: Well, the Article III judges aren't always right. But I think they've traditionally provided a good balance.

END

OK, so why did Philbin pass on multiple opportuniuties to mention that indemnification was not something the Senate needed to take up becasue oit was already in place? Was the DoJ expert in the dark, or did he lie to Congress?

This is a HUGE story. If bmaz and K Drum are right about indemnification, of course.

Posted by: Tom Maguire on March 3, 2008 at 9:27 AM | PERMALINK

Tom Maguire is a wingnut troll that was summoned forth to try to discredit our work on the Scooter Libby matter at The Next Hurrah. He never made a dent and thoroughly embarrassed himself in the process. The indemnification argument must be striking a raw nerve for him to be appearing here and repetitively spewing his mindless bullshit. If you'll notice, this is the second time he has repeated the same lame line of attack; one that he knows full well is answered in the main article. That is how he intentionally tries to disrupt.

Posted by: bmaz on March 3, 2008 at 9:38 AM | PERMALINK

But, wait a minute....if inidemnified, why did Quest refuse to cooperate with the Administration? USA Today reported that: "Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants....Later Joseph Nacchio argued that he was being prosecuted by the Administration because his company didn't play ball. (He was charged with and tried on insider trading charges. Convicted as I recall.) Part of his defense was that he had refused cooperation and the prosecution was in retaliation. (I'm not suggesting this is true, but it's even less convincing if Quest had been indemnified in advance.) What do the corporate lawyers think of this?

Well, speaking as a corporate lawyer Qwest didn't cooperate because it was illegal to do so, simple as that. A basic principle of contract law is that you cannot contract out of the law, i.e. any contractual agreement to break or evade the law is null and void. Indemnity only guarantees that the party giving you indemnity will make you whole with regard to damages if you are sued by a third party or otherwise suffer a loss; it cannot protect you from criminal liability (and cannot restore goodwill after your irate customers discover you've been spying on them).

Posted by: Stefan on March 3, 2008 at 9:50 AM | PERMALINK

It was all obstensibly about using these weapons in Iraq, but their demonstration used mock peace protesters carrying signs like 'World Peace' and 'End the War'. I found it all slightly disconcerting, especially the part where they say they need a real live field 'test' before they will get approval to deploy overseas...

It was one of the most disturbing things I've ever seen on that show. Not once did the reporter raise the issue that this weapon could be used by authoritarian regimes both here and abroad in order to effectively end street demonstrations. How would the Orange Revolution in the Ukraine, say, have gone had the government been able to use this to disrupt the massive street protests that swept it from power? What use could authorities in Pakistan, China, Russia, the US, Iran, etc. make off this to disperse any democratic protestors? It was being presented as a weapon to save lives when that's not what it is at all -- it's a weapon to end mass dissent.

Posted by: Stefan on March 3, 2008 at 9:57 AM | PERMALINK

But what about this comment:

Nearly 40 lawsuits, consolidated into five groups, are pending before a San Francisco judge. The various plaintiffs, a mix of nonprofit civil liberties advocates and private attorneys, are seeking to prove that the Bush administration engaged in illegal massive surveillance of Americans' e-mails and phone calls after the Sept. 11, 2001, terrorist attacks, and to show that major phone companies illegally aided the surveillance, including the disclosure of customers' call records.

BUT, But hasn't it come to light that the Bush administration was doing massive surveillance of Americans BEFORE 9/11 without the knowledge or approval of the FISA Court - nothing about that point being made out right.

And yet the House Dems are just about to give Bush everything he has been asking for. Just like we all knew they would in end. I don't know why Dems pretend otherwise. It's all a wheel-&-deal kind of world that the American public has no say in and no part of. We all just pretend Dems are somehow different that Republicans. They aren't so it doesn't really matter whos in office anymore.

Ralph Nader is looking better all the time.

Posted by: me-again on March 3, 2008 at 9:59 AM | PERMALINK

Ralph Nader is looking better all the time.

Yeah, he'll solve every problem we have. He's the savior of people who don't have a clue as to how the world really works. As a matter of fact, right now, Ralph is levitating four feet above the Earth and is dispensing blessings and peace from his outstretched hands.

Trouble is, he CAUSED those problems by handing Florida to Bush, but what are you gonna do? Why let a little detail like that get in the way of common sense?

Posted by: Pale Rider on March 3, 2008 at 10:07 AM | PERMALINK

A couple of other points in regard to Patrick Philbin. He was no "hero" in the Ashcroft matter. He, Goldsmith and Comey blithely allowed and participated in the abuses of the Bush/Cheney contortion of the Constitution and law until the FISA court called BS and indicated that the whole lot had been making fraudulent and false legal and factual assertions, thus placing Philbin's, Goldsmith's and Comey's law licenses in the lurch; only then, when worried about their own petty rear ends, did Philbin et al take any action. Even then, it was only enough to protect themselves, no ultimate good came from it at that time; in fact, they all conspired to keep it covered up until much, much later.

Secondly, just so you folks know who Pat Philbin is, he is a telecommunications lawyer who was on paid retainer to Verizon prior to his disservice to the country at the DOJ, and he is now at Kirkland & Ellis, one of the biggest telcos shill firms in the world. Remember what Lab Dancer said above about the incestuous career path of telco lawyers? Philbin is a prime example. Oh, and by the way, if Philbin even knew about the existence of indemnification agreements, he still would not be able to testify about them because they would be classified.

Lastly, as to Qwest, Stefan is right. There are also people close to the criminal trial of Nacchio that have indicated that Nacchio was going to cooperate, but was trying to leverage his position to get a more profitable deal (he needed quite a bit to cover the discrepancies in his books resulting from improper accounting practices that had occurred under his leadership). Cheney called his bluff and buried him. The Qwest case is very complicated, not all of the total and true facts have seen the light of day due to state secrets assertion there too, and Qwest may or may not be the lone principled holdout (and it should be noted that soon as Nacchio was out, which the Bush DOJ saw to quickly, Qwest changed it's tune).

Posted by: bmaz on March 3, 2008 at 10:23 AM | PERMALINK

Re bmaz's "Tom Maguire is a wingnut troll...":

Ironically, a bmaz acolyte left this at my site:

bmaz is very well-versed in legal strategy and behaviors of attorneys in numerous situations, as well he should be. He'll disagree with emptywheel or anyone else by his lights, but he's not a know-it-all; he's generous and a very handy guy to have in a discussion. Anyone who disagrees with him is free to take him on, but don't expect any personal attack against him to eliminate engaging on the issues.

Whatever; doesn't say anything about personal ataccks *from* him. As to whether bmaz cares to engage the issue - did Philbin and Wainstein lie to Congress, or are they in the dark about an indemnification already in place - I guess we are still waiting, at at least I am.

Or maybe he could repeat to me where that is covered in the main article; I think he will be comfortable with an assumption that I have weak reading skills, and ought to be kind enough to indulge me.

bmaz did offer this:

Oh, and by the way, if Philbin even knew about the existence of indemnification agreements, he still would not be able to testify about them because they would be classified.

That covers testimony to the Senate, which has never taken closed testimony? Uh huh.

Posted by: on March 3, 2008 at 10:38 AM | PERMALINK

Well, Mr. Maguire, you seem to be getting sensitive in your old age. i indicated, and properly so, that you were a right wing troll as an identifier, not as an attack. In the old days at The Next Hurrah, you wore it as a badge of pride; now, suddenly, you object? Curious. Nevertheless, you prattle on about Philbin. As I have made quite clear, Congressional leadership know about the indemnification agreements should they, in fact, exist (and I still believe that the case is very strong that they do). As I explained in the article, if the government has secretly provided indemnification, that means the US taxpayers are on the hook for massive damages. Congress does not have the courage to talk about a miniscule tax increase even for our children's health; how could they explain paying for the criminality of the Bush Administration and telcos? The Congress has a vested interest in shoving this all under the table, that is why they are assisting the bum's rush to cover the Administration's ass. And the commenter you describe is right; if i wanted to attack you personally, there is plenty of ammo. I merely pointed out your historical role. I'll say this, if you are here peddling repetitive and disingenuous diversions, I must have struck a raw nerve. Excellent.

Posted by: bmaz on March 3, 2008 at 10:55 AM | PERMALINK

We all just pretend Dems are somehow different that Republicans. They aren't so it doesn't really matter whos in office anymore.

Oh, come on. That's just nonsense. Sure the Democats in Congress are caving, but after the 2000 stolen election can you honestly say that we'd be where we are now if Al Gore had been in office instead of George Bush?

Posted by: Stefan on March 3, 2008 at 10:56 AM | PERMALINK

Thank you for this, bmaz!

Posted by: Lucy on March 3, 2008 at 11:05 AM | PERMALINK

"OK, so why did Philbin pass on multiple opportuniuties to mention that indemnification was not something the Senate needed to take up becasue oit was already in place? Was the DoJ expert in the dark, or did he lie to Congress?"

I'd go with lie, Tom. Admitting that indeminifcation agreements are in place makes it look crooked from the get-go.

Posted by: Jose Padilla on March 3, 2008 at 11:18 AM | PERMALINK

Mr. Maguire, how many legal cases have you handled involving wiretaps? How many involving indemnification agreements? None I will bet.

More importantly, if I am wrong, so be it; that would be a relief, but I do not think i am. Irrespective of that, all I want is the truth. So perhaps Tom Maguire would like to join us in calling for sworn testimony under oath, without secrecy, on whether or not the bush Administration has previously given indemnification to telcos? Are you in for that Mr. Maguire???

Posted by: bmaz on March 3, 2008 at 11:37 AM | PERMALINK

As I have made quite clear, Congressional leadership know about the indemnification agreements should they, in fact, exist

So Nancy Pelosi and Harry Reid are covering for George Bush. Did you explain that to Kevin when you ran this vision past him?

Help us al - how far does the conspiracy extend? Bush has lied at press conferences on national television; current and former DoJ officials have misled Congress; and "Congressional leadership", rather than blowing the whistle on Bush's unilateral provision of indemnity, have played along.

Any else I am missing, or does that cover it? if you want to include the FISA judges that have let these lawsuits move forward, this would be the time.

Mr. Maguire, how many legal cases have you handled involving wiretaps? How many involving indemnification agreements? None I will bet.

Appeals to authority? Often a sign of a weak argument. But since you have broached it, how often have you used Google?

Irrespective of that, all I want is the truth. So perhaps Tom Maguire would like to join us in calling for sworn testimony under oath, without secrecy, on whether or not the bush Administration has previously given indemnification to telcos? Are you in for that Mr. Maguire???

Although I am always a friend of the truth and a bitter enemy to lies, I am absolutely not willing to associate myself with as badly researched and argued a call to arms as this; I have an idea that maybe a little credible research would be appropriate, first. And my own research has not given me any reason to think that I will come off as anything other than a crackpot for demanding answers to these seemingly-silly question.

But don't let that stop you! Now that Kevin has sounded the horn, it is only a matter of time until Josh Marshall picks up this new scandal, yes? Or maybe the Daily Kos? I mean, ge whiz, Bush lying to the public, senior officials lying to Congress, Congress lying to the public and taking up legislation to cover their own complicity - this blows the Eight-Gate fired prosecutors out of the water.

As if. What is going to happen next will be a Move On moment; Josh won't write a post mocking Kevin's hare-brained "analysis", and Kevin won't write an UPDATE saying "Maguire drank my milkshake - he drank it up", but folks will just drift away, leaving bmaz raving about this web of lies that ensnares Bush, Pelosi, Reid, and who knows who else.

Well, there is always an audience for "Bush Lied", so you won't be lonely. And you can salvage something for yourself by insinuating that I am lying about something or other. Have a nice day.

Posted by: Tom Maguire on March 3, 2008 at 12:26 PM | PERMALINK

It doesn't look like Tom Maguire has accomplished much, other than cut and pasting a little Congressional testimony. And even what he could cut and paste looks pretty slim. Generally, when a telecom lawyer goes in front of Congress and testifies, one doesn't get the truth--one gets something very parsed and minimal. Not sure if you know what plausible deniability is, but you could drive a truck full of plausible deniability through what you've said so far.

So, no, you've not drunk the milkshake of anyone--you've just kicked the can down the road by ignoring the fact that this is a criminal administration that has no credibility.

Generally, when the Chief of Staff of the Vice President is convicted on 4 of 5 counts, it means there is criminality within the administration. This is the kind of thing that, had it happened in 1998, would have fueled a million wingnut jackoff fantasies.

I personally don't think indemnification really matters at all. What good will it do when they discover the chain of evidence, as in, the meticulously internal documentation that exists within the legal department of every telecom company? Had you considered that? No amount of indemnification can get past what the evidence might show--and that means that I hope someone, somewhere, has figured out how to really take care of deleting all of that E-mail.

You have some of the biggest companies in the country handing over information to the government without a proper warrant. That's the crime. That's what matters here. And it looks like someone is going to be in serious legal jeopardy when the control of the Justice Department reverts to a "rule of law" type mindset rather than a "protect the electoral viability of the Republican Party" mindset.

Isn't that what we should focus on? The coming wave on indictments? Civil cases, be damned. A whole mess of people wearing fancy suits should be in prison right now, weaving baskets.

Posted by: Pale Rider on March 3, 2008 at 12:47 PM | PERMALINK
Trouble is, he CAUSED those problems by handing Florida to Bush, but what are you gonna do? Why let a little detail like that get in the way of common sense? Posted by: Pale Rider on March 3, 2008 at 10:07 AM

If you think President Nader would have done this illegal spying, or invade Iraq, or appoint right wing morons to the Supreme Court you're seriously deluded.

Had those who voted for Gore had voted for Nader instead we would not be in this mess. I blame them for the past eight years of this criminal administration and the deaths of innocent Americans and Iraqis.

Turn about is fair play after all. And what I'm asserting is absolutely true. Blaming Nader is the Democratic Dolchstoßlegende.

Posted by: Dr. Morpheus on March 3, 2008 at 12:54 PM | PERMALINK

I don't think Nader would have done any of those things.

Then again, all we really know about the Ralph Nader of today is that he cares only about himself. Otherwise, he'd have stuck around and built up the Green Party instead of his own ego. He might have made some serious progress toward our having a viable third party. But 24/7 services at the Church of Ralph claimed all his time and passion.

Ah, well, politicians who say one thing and do another, wholly self-interested thing...nothing new under the sun.

Posted by: shortstop on March 3, 2008 at 1:03 PM | PERMALINK

Blaming Nader is the Democratic Dolchstoßlegende.

Nah, holding Nader accountable for what he actually did do isn't buying into any kind of "legend."

Ask any Green Party member who watched Nader renege on his pledge to help build the Green Party. Nader's in it for himself, and, curiously, much of his support comes from Republicans who are in tight races.

Nader Republicans [Nathan Littlefield, 9/2004]
What do you do if you're a loyal Republican who, like three fifths of George W. Bush's donors, has given $2,000 to the President's re-election campaign—the maximum that the law allows? If you're among a growing number of clever conservatives, determined to bleed votes from John Kerry at any price, you write a check to Ralph Nader. Who better to throw a close election to your man than the guy who did so last time around? If Machiavelli had had to contend with campaign-finance laws, this is a tactic he might have devised.
Nader himself claims that his candidacy will attract angry conservatives. That description, however, doesn't fit the small but distinguished group of Republicans who have given him money; most had already voted for Bush with their checkbooks, donating thousands of dollars to the President and the Republican Party. "Nader would probably deny it," says Larry Noble, the director of the Center for Responsive Politics, a group that tracks money in politics, "but these people are obviously supporting him to undermine Kerry." According to data collected by the center, Nader's most prominent Republican backer is the billionaire Richard J. Egan, a Bush "Ranger" and recently the ambassador to Ireland, who has so far bundled more than $200,000 for the President's re-election campaign. Over the past year Egan and his wife have given $35,000 to the Republican National Committee and thousands more to the party's congressional candidates—so Egan's primary goal in donating $2,000 to Nader was probably not a return to Dublin as Nader's ambassador.
Another prominent Nader Republican is the conservative comedian and game-show host Ben Stein. His purposes, too, seem clear. In February the Bush campaign was forced to issue Stein a refund check after his donations exceeded the legal limit. Spotting an alternative, Stein sent Nader $1,000.

Given that you can back up all of this simply by using opensecrets.org, it's kinda hard to keep pushing the idea that there's anything "legendary" or made-up about Republican support for Ralph Nader as a spoiler, and nothing more.

Posted by: Pale Rider on March 3, 2008 at 1:04 PM | PERMALINK

"Why is the government's retroactive 'taking' away of my damages claim any different than 'taking' the front 30 feet of my property for a wider road?"

JC: One answer might be because there's no existing property interest; you're speculating that you'll get damages. Under this theory every tax increase would also be a taking, because you'd claim a property right in future income.

More fundamentally, I think the issue behind the takings clause is that the government has eminent domain powers, which no other kind of entity has. It can compel you to give up property that you hold now. That's what's always been a taking.

I know there's been an effort to expand the takings clause to cover the effects of regulatory changes, like zoning or wetlands mitigation, etc.
I don't know if even this Supreme Court wants to go there, in part because the losses are hard to prove (they're speculative) and in part because it would create a logical infinite loop where governments are liable for any economic harm that putatively results from any action-- including the higher taxes needed to pay the damage awards. That's a trap with no way out.

Ever see cars smashed up by police or fire vehicles acting in the call of duty? From what I understand, those people can't recover a penny. And that's for a piece of tangible property. It's not the same as most takings, but it does show that there are some kinds of government takings that we don't have a right to recover.

Kelo confirmed eminent domain and compensation schemes even where direct governmental use wasn't involved. (That's a retrospective blessing on w bush's scheme for the Ranger ballpark, but never mind.) This court is far more interested in saving government discretion than in limiting it.

Posted by: Altoid on March 3, 2008 at 1:47 PM | PERMALINK

If you think President Nader would have done this illegal spying, or invade Iraq, or appoint right wing morons to the Supreme Court you're seriously deluded.

If you think there ever could be a President Nader in this country you're the one suffering from delusions. Seriously, get help. I am so fucking tired of delusional nonsense of "oh, if only everyone else had bought into my utopian fantasy the world would be OK!"

Blaming Nader is the Democratic Dolchstoßlegende.

Oh, fuck off.

Posted by: Stefan on March 3, 2008 at 1:51 PM | PERMALINK

Nader says some important things, but he's an inept administrator, and has been unable to successfully manage any of the public interest groups that he has started. The people who've worked directly for him have a tendency to quit in fury.

Again: Nader says some important things.
But he'd be an absolute disaster as President.
The man is temperamentally incapable of managing even a tiny bureaucracy.

Posted by: joel hanes on March 3, 2008 at 2:40 PM | PERMALINK

Okay, explain to me why Jay Rockefeller is supporting the legislation. I've seen it mentioned several times about how our Senators are in the pockets of the telcomms. Do they just not realize yet that the telcomms don't care?

Or are the Republican's not getting any money because they aren't in charge anymore, and they won't be for a long time?

Posted by: DR on March 3, 2008 at 2:42 PM | PERMALINK

"Trouble is, he CAUSED those problems by handing Florida to Bush, but what are you gonna do? Why let a little detail like that get in the way of common sense?"

Posted by: Pale Rider on March 3, 2008
------------

That's an easy charge to make. In his role as politician I am not a fan of Nader. But, to blame him for what Bush has done is wrong. The Republicans were going to steal the election regardless.

Put the blame where it properly lies, with Republicans and their current ideology. It is a Vast-Right-Wing-Conspiracy.

Even if a 3rd party candidate helped someone win it didn't force Bush to do these nasty things. You have to look at the entire Republican machine and how it works and who is in charge and why they set out on the course they're on. It's a complicated story (I feel certain).

And NO, Nader isn't looking better all the time. Sadly, none of the candidates looks very good to me.

Posted by: MarkH on March 3, 2008 at 3:42 PM | PERMALINK




 

 

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