We knew this “compromise” was in the works, but it doesn’t make today’s announcement any less disappointing.
After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades. The House is likely to vote on the measure Friday, House aides said. […]
The new agreement broadens the authority to spy on people in the U.S. and provides conditional legal immunity to companies that helped the government eavesdrop after the 2001 terrorist attacks, according to congressional aides in both parties.
The deal, if adopted, would bring the spy activities of a controversial National Security Agency surveillance program permanently under the law. That would allow the government, in certain circumstances, to eavesdrop on U.S. citizens without a specific warrant. It would also expand government spy powers to monitor communications between the U.S. and overseas to collect intelligence on topics beyond terrorism.
The agreement would also pave the way for companies such as AT&T Inc. and Verizon Communications Inc. to shed the nearly 40 lawsuits they face for allegedly participating in a prior version of the NSA program, which have cast a shadow over their reputation on Wall Street and Main Street. To win immunity, they would have to pass review from a U.S. District Court.
The “review” doesn’t amount to much of a check. As mcjoan explained, “The federal district court would not be deciding on the legality of the program, they would be limited to determining if the White House showed the telcos a piece of paper saying that the warrantless program was legal enough — which we already know. They’re going to try to justify it with that ‘substantial evidence’ business, as if defining that piece of paper as ‘substantial’ somehow makes the fact that they are directing the court to make its decision, regardless of the law, not a travesty.”
This doesn’t sound like much of a “compromise” — the White House and the telecommunications companies are getting effectively everything they wanted.
Indeed, Glenn Greenwald reviewed the language in the bill and concluded, “[A]ll the Attorney General has to do is recite those magic words — the President requested this eavesdropping and did it in order to save us from the Terrorists — and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was.”
Shaping the law this way is madness. Proponents are characterizing this as establishing some kind of condition for retroactive immunity — the telecoms aren’t off the hook, the argument goes, because the White House would still need to show that Bush & Co. initiated the illegal surveillance. But given that the White House and the telecoms already have endorsed this “compromise,” it’s pretty safe to assume they know this is a threshold they can meet. If they didn’t have the piece of paper to show to a judge, they wouldn’t have endorsed the deal.
Laura Rozen added: “Doesn’t that actually endorse and extend to private actors the Nixonian view that if the president says it’s legal, it’s legal, regardless of what the law says and the Constitution says? Wouldn’t that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?”
Why, yes. Yes, it would.
The Electronic Frontier Foundation, which is helping represent plaintiffs challenging the telecommunications companies’ role in the warrantless-search program, has the right message:
“Whatever gloss might be put on it, the so-called ‘compromise’ on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review,” said EFF Senior Staff Attorney Kevin Bankston. “We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court.”