Kevin Drum either has a huge story in which Evil BushCo has misled Congress for months, or he has nothing. The topic is indemnification, as an alternative to immunity, for the telecom companies; we will let him start us up:
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:
...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.
Oh, if BushCo has already indemnified the telecoms it is a much bigger story than K Drum recognizes. The Senate Judiciary Committee has considered indemnification as one possible alternative to immunity (they lean against it) and took testimony from Kenneth Wainstein, a senior DoJ official who also argued against it.
Another witness to the Senate Judiciary Committee was Patrick Philbin, one of the DoJ lawywers who blocked re-authorization of the surveillance program while Ashcroft was in the hospital. He is now in private practice (having incurred Cheney's enmity), but revealed nothing about an ongoing Administration indemnification program. Is it possible that despite his expertise in the overall program he is in the dark on that minor detail? Or is he still protecting BushCo?
Jiminy, if these earnest Senators find out that Bush has already indemnified the telecoms and sent one DoJ guy to, hmm, misdirect them while a former DoJ official was kept totally in the dark on that point, there will be Hades to pay, and yes, I bet the press will get interested.
Of course, the alternative is that there is nothing to the Drum/bmaz indemnification theory. Yet another tough call!
So why aren't the telecoms battling hard for immunity? Well, they are looking at a Democratic Congress today and a likely Democratic President next year, so picking Bush's side in a partisan dispute would be foolish long term play. On the other hand, they have about seventy votes in the Senate and the House, per Greenwald, is poised to yield to Bush's will. If this is a deeply flawed strategery, what would K Drum consider to be an effective one?
HOLD THE APPLAUSE: Yeah, I knocked myself out researching this, picking up three of the top six Google hits for the fiendishly clever search on "indemnification surveillance fisa". That seemed like a more promising route than my first notion, "Bush fisa blow smoke out of". Do not attempt this at home!
1. From the Senate Republican Policy Committee, Jan 23, 2008:
FISA Modernization and Carrier Liability
...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.
2. News excerpt dated Oct 31 2007 about Kenneth Wainstein's testimony to the Judiciary Committee:
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."
"Any company that assisted the government in defending our national security deserves our gratitude, not an avalanche of lawsuits," Wainstein said in written testimony.
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.
Pretty shocking if the telecoms have immunity and he doesn't even know it; more shocking if he does know it and delivered that testimony.
3. Patrick Philbin, from Oct 31 2007:
SEN. SPECTER: Mr. Philbin, why not indemnification?
First, let me congratulate you for standing up, as Mr. Comey lauded your performance under difficult circumstances.
MR. PHILBIN [PARTNER, KIRKLAND & ELLIS, WASHINGTON, D.C, but formerly a hero of the hospital FISA showdown involving Ashcroft, Comey, Gonzalez, and Card]: Thank you, sir.
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.
So Philbin, one of the DoJ heroes with serious reservations about the Admin program, is unaware of the Administration's indemnification of the telecoms, or is keeping quiet about it. Uh huh.