I don’t want to belabor the point, but I re-read the transcript of the president’s brief South Lawn press conference yesterday, and a few of Bush’s comments about telecom immunity suggest the president doesn’t have the foggiest idea what he’s talking about.
“The Senate bill will provide fair and just liability protection for companies that assisted in the efforts to protect America after the attacks of September the 11th. Without this protection, without this liability shield, we may not be able to secure the private sector’s cooperation with our intelligence efforts. And that, of course, would put the American people at risk. […]
“[P]eople are wondering why companies need liability protection. Well, if you cooperate with the government and then get sued for billions of dollars because of the cooperation, you’re less likely to cooperate. And obviously we’re going to need people working with us to find out what the enemy is saying and thinking and plotting and planning.”
It’s deeply unfortunate that, after all of these months of debate and discussion, the president is still this confused.
The Bush administration wants to extend amnesty to telecommunications companies that appear to have broken the law. I say “appear” because the telecoms can have their day in court, presenting evidence, and defending their decisions. Bush believes Congress should stop ongoing legal proceedings, and doing so is important enough to hold the nation’s surveillance laws hostage. (As Matt Yglesias put it, “It’s almost as if the Republican Party exists to serve the interests of large business enterprises and very wealthy individuals, and tends to use national security and cultural anxieties as a kind of political theater aimed at securing votes so that they can better pursue their real agenda of enriching the wealthy and powerful.”)
The notion, though, that telecoms would no longer cooperate with intelligence agencies is just foolish. Two things would happen without telecom immunity: 1) the companies and their teams of lawyers would defend their decisions in a fair trial; and 2) the companies would continue to cooperate because the administration (and any future administration) would get a warrant.
To hear Bush tell it, telecoms would start blowing off court orders. That’s simply not realistic — the telecoms and their lawyers are well aware of the fact that refusing to honor a warrant would bring rather drastic legal consequences. With or without amnesty for previous criminal conduct, the companies will have to cooperate — they won’t have a choice.
Nevertheless, it appears that the White House, despite all of its huffing and puffing, is not going to get what it wants, at least not now.
The House broke for a week’s recess Thursday without renewing terrorist surveillance authority demanded by President Bush, leading him to warn of risky intelligence gaps while Democrats accused him of reckless fear mongering. […]
Trying to put pressure on Democrats, Mr. Bush offered to delay a trip to Africa to resolve the dispute and warned that failure to extend the expanded power under the Foreign Intelligence Surveillance Act, which expires Saturday, could hamper efforts to track terrorists…. But Ms. Pelosi and other House Democrats said Mr. Bush and Congressional Republicans were at fault because they had resisted temporarily extending the bill to allow disagreements to be worked out. Democrats would not be bullied into approving a measure they considered flawed, she said.
Good for the Dems, who effectively called Bush’s bluff.
As for the “consequences,” the WaPo had a fairly helpful Q&A on what happens when the PPA expires.
The Protect America Act (PAA), approved last August, expanded the government’s ability to monitor the communications of terrorism suspects without obtaining court warrants. The law is set to expire at the end of the day tomorrow unless Congress renews it. Here is what could happen if the law expired:
* The government would retain all the powers it had before last August under the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain court approval for surveillance conducted on U.S. soil or against U.S. targets.
* Classified orders allowing the monitoring of international telephone calls, e-mail traffic and other communications under the Protect America Act routinely are valid for a year, so they would not expire before August.
* Those orders cover terrorist groups or telecommunication providers in their entirety, according to government officials and lawmakers. New groups, phone numbers and other information could be added to existing orders, Democratic lawmakers say.
* If a targeted person uses a telecommunication company not covered by such an order, the administration says the government may have to obtain a new order from the FISA court. The administration views this as a cumbersome process; Democrats say obtaining emergency FISA approval is straightforward.
* Administration officials say that without the PAA, they may have to seek FISA court approval to monitor communications between foreigners that pass through U.S. switches. Democrats counter that such communications are covered by existing directives.
The consequences are hardly drastic. If lives were literally in danger without the PAA, the administration would drop its demands for telecom immunity.