K Drum, Breaking A Big Story Or Breaking, Well...

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? 

Tedious excerpts from the links after the break.  Via Memeorandum I see a couple of lefties on Kevin's bandwagon.  What will they think of next?

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!

MY BLACK, BLACK HEART:  Far be it from me to suggest that instead of doing his homework Kevin was sniffing glue, but someone might!  More here.
 

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.

Comments

[clarice]

Very tough call. Not.

[Foo Bar]

Sorry to post off-topic, but I'm interested to hear the revision of TM's theory that Obama was playing it safe politically on the war by echoing front runner Moseley-Braun in light of the fact that Obama was not going to run unless Moseley-Braun dropped out.

[Other Tom]

I assume that the president--not just Bush, but the Article II President--lacks the power unilaterally to indemnify anyone at the taxpayers' expense against the judgments of Article III Courts. I would think that the Article I Congress, the appropriator of funds, would necessarily have a say.

Am I missing something?

[boris]

Obama was playing it safe politically

Safe or not the B Hussein Obama was wrong. Al Qaeda cut and ran from Afghanistan but considered Iraq worth making a stand for. Their funeral. If taking on Al Qaeda required invading some other country the obvious candidate was Iraq. Two birds Fubird.

not at all sold that his anti-war position was not conventional calculation for his situation

That is not an assertion that BHO was "playing it safe". Just unconvinced he wasn't. Not the same. Still FUBAR in the logic department.

[clarice]

*Thwack,OT.Thwack thwack thwack..*No one likes someone who's read the constitution making like you know constitutional arguments..

[bgates]

How about this, FB:
Obama sees the electorate as split, say, 60-40 in favor of leaving Saddam in charge. Given those numbers, there would be no point running as either the first-string anti-Saddam candidate, or the second-string pro-Saddam candidate. Without CMB in the race, a space opened up for a new Baath preservationist, and Obama took it. Even so, as your own link states, he didn't try to distinguish himself from the field on the issue, he asked the other candidates to join him in opposing Bush.

So he wasn't seeking to minimize policy differences with his opponents, he was trying to get them to...adopt the same policy positions he had.

[bgates]

Kevin Drum either has a huge story in which Evil BushCo has misled Congress for months, or he has nothing.
That's as succinct a summary of Washington Monthly as I've ever seen.

Wait! I can beat it:
Kevin Drum has nothing.

[Cecil Turner]

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. [emphasis added]

Hmmm, ya think? It's not a matter of who pays whom, it's a question of trying to keep sensitive intercepts (and the methods behind them) secret. The idea we're even considering allowing plaintiffs' lawyers to run through the most sensitive ("no such agency") files looking for nuggets is frankly astonishing to me. Have we lost our collective minds?

I'm interested to hear the revision of TM's theory that Obama was playing it safe politically on the war by echoing front runner Moseley-Braun . . . [And Dick Durbin, and 90% of the CBC]

Yeah, that one obviously needs a revision, eh? Because only echoing the last place candidate's positions is safe?

[Ann]

Clarice, I liked your article at AT and your blog on Susan Rice.

There was a commercial on this afternoon for the World Wildlife Fund. Another actress was crying over the demise of the poor polar bear. Did you know they will not be around for our grandchildren? It was so sappy and the best part was the WWF didn't want a contribution. They wanted $16.00 a month!

I need to get with Hit and go over our puppy strategy. I didn't realize it could make money too.

[clarice]

Thanks.

I think that everyone who's not taking a Gitmo prisoner home to live with them during the duration of jihadi hostilities ought to make room there for one of the polar bears.

[RichatUF]

Cecil-

Have we lost our collective minds?

Yes. I was thinking about the lawsuit angle on all this and wonder if something like this is going on. For non link followers, it is Forbes story from 2007 detailing how pe and hedge funds finance IP lawsuits. Don't quite know how I could research that but I'm sure some gumshoes in the press might find something. Maybe Forbes could look into it.

[Porchlight]

Clarice, I liked your article at AT and your blog on Susan Rice.

Me, too, Clarice. There's more fun to be had in the Susan Rice Nexis paper trail, including the tale of Chief Moshood Abiola, the Nigerian political prisoner who dropped dead after Ms. Rice served him tea (suspected poison case). Well, okay, eyewitnesses differ on whether the tea was the poison vehicle, or whether he was poisoned at all, but there was rampant speculation in the African papers indexed in Nexis. Good times, those Clinton years.

[RichatUF]

Porchlight-

Susan Rice might not get over to South America, but this looks like a crisis. I'm sure BHO is going to lead the way in getting Chavez to stand down, maybe even have Susan Rice bring him some tea.

I was supposed to look some stuff up, but didn't get around to it, but has anyone looked to see what her statements were regarding the Niger coup in 1999. I've found a bunch of links regarding the Nigeria coup, Sierra Leone, and the Congo but coming up empty on Niger [the coup that everyone forgot].

Seems she has ducked out on Rwanda and she was never at the UN (I made that claim in a prior thread and apologize for the error), but had the peacekeeping and ngo portfolio at the NSC at the time (seems that Somalia would have been in there too).

[Topsecretk9]

The idea we're even considering allowing plaintiffs' lawyers to run through the most sensitive ("no such agency") files looking for nuggets is frankly astonishing to me. Have we lost our collective minds?

Didn't NYT's Keller say all his his papers best leaks come from lawyers? Or something to that effect?

[MayBee]

bmaz is an emptywheel sycophant. I've never been under the impression that he has any idea what he is talking about. He just knows Bush is really really bad.

[Topsecretk9]

Maybee

and so it's definitely connected to the 7 fired US Attorneys then.

[Sedgequill]

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.

Legal counsel for the telecoms are not going to be forthcoming with facts of indemnification, if it occurred, nor are any telecoms that were the beneficiaries, if such they were; so, we've got a big information deficit. Not requiring indemnification before engaging in illegal surveillance and information-sharing would, though, have been out of character and contrary to established practice for telecom executives and their legal counsel even for situations presenting much less potential legal and financial exposure. And they know that a protective administration is not forever.

[Jim Rockford]

Alternatively, Drum is being used by the Far Left and trial lawyers to torpedo Pelosi's surrender on immunity.

There's billions of dollars to be made, more than asbestos, tobacco, and other lawsuits. So the big money Trial Lawyers will do or say anything to keep hope alive!

Plus the hard left Code Pink types will not be happy until we can't do anything with terrorists, because Americans all deserve to be killed (by Code Pink's reckoning).

[kim]

Damages, damages. Might not all the class benefits counterbalance any imagined class damages? What about that?
================

[kim]

Rather than calling it illegal surveillance, sedgequill, how about calling it meta-legal? The capability for this kind of data-mining is beyond previous experience, and certainly beyond extant laws. Why do think the administration wants new laws?

Empty head et al never saw a law this administration couldn't break.
=======================

[kim]

Oh, boy, read what Markos says about Dean. Available through RCP.
======================================

[Neo]

The telecoms don't necassily need the promise of indemnification to get them to back down from a pro-active stance on the pending legislation.

They know that in this game, they own the football. If Congress doesn't play, there is no game, so they know the Administration will do everything they can.

Besides, with any form of indemnification, it all depends on the "level" of indemnification that is provided.

Frankly, anytime there is any agreement to help, anybody, there is some level of indemnification granted or at least implied, but was there ever a grant of "full indemnification" given to the telecoms, I doubt it.

Kevin is just "throwing s..t at the wall" to see what sticks. He should be careful that some of it doesn't splatter on himself.

[TM]

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.

I'd be delighted to hear him, K Drum, or sedgequil take on any of the issues I raised. My guess? We will never see any acknowledgment from Drum, bmaz, or anyone else of the point I am raising.

Meanwhile, since roughly seven minutes of painfully obvious research made the bmaz theory look, hmm, deeply unlikely, please excuse me if his latest offering has failed to inspire in me a high opinion of him; if he has been noodling this argument for days without doing even minimal homework, what am I to conclude?

[Stephen]

So, Tom, the notion that Bush would lie or deceive Congress is ... like so ludicrous on its face, that ... just on the utter preposterousness of that notion alone ... I'd say you've pwned Kevin Drum!

Big time. He's in his last throes. He'll be done in another six months. No one could have imagined that a Bush guy would lie to Congress.

[SunnyDay]

And they know that a protective administration is not forever.
*********************

What?? I thought Bushco and his jack-booted thugs had created a theocracy.

There will be no election - the takeover will be complete before then.

[MayBee]

You can prove the possibility of anything if you simply regard everything you've heard to the contrary as a lie, Stephen.
That's the beauty of bmaz's guess- it's virtually impossible to disprove.

Such agreements would force the federal government to pay any legal judgments awarded in suits against the telcos:

How does Bush get the telcos the money, if he never tells Congress about the indemnity clause? Or is that a hiccup the Telcos never thought to ask about?

[clarice]

Undoubtedly thrilled at Jay Rockefeller's endorsement of him in which he referred to Obama as "brilliant", Obama makes a major blunder. He praises Rockefeller for having done his homework and , unlike Hillary, voting against the authorization to use force in Iraq http://apnews.myway.com/article/20080302/D8V5I2A81.html .

[quote]

Obama criticized Clinton expressly for failing to read the classified National Intelligence Estimate on Iraq’s weapons capabilities, a report available at the time of her October 2002 vote authorizing the Iraq war. “She didn’t give diplomacy a chance. And to this day, she won’t even admit that her vote was a mistake - or even that it was a vote for war,” Obama said.

“When it came time to make the most important foreign policy decision of our generation the decision to invade Iraq Senator Clinton got it wrong,” Obama said.

He said that Sen. Jay Rockefeller, a fellow Democrat from neighboring West Virginia, had read the intelligence estimate as a member of the Senate Intelligence Committee and had voted against the war resolution.

Rockefeller, who is now chairman of that committee, endorsed Obama on Friday and campaigned with him on Saturday.

Rockefeller called Obama “brilliant” and “well grounded” and prepared to take the reins as commander in chief.[/quote]

As Hot Air notes, however, not only did Rockefeller with access to all the intelligence reports vote FOR the war , he gave a speech in defense of that position http://hotair.com/archives/2008/03/03/brilliant-potential-c-in-c-blows-rockefellers-record-on-the-war/>Good grief Bambi:

[quote]

In fact, Rockefeller didn’t just passively vote “yea” in the Senate. He gave a speech on October 10, 2002, prior to the vote, exhorting his colleagues to support the AUMF and the invasion of Iraq. In that speech, he made it clear that his vote would be in support of war, if it came to that:

Saddam Hussein represents a grave threat to the United States, and I have concluded we must use force to deal with him if all other means fail. That is the core issue, and whether we vote on it now, or in January, or in six months time, that is the issue we all have to confront.

War, if it comes to that, will cost money I dearly wish we could use for other domestic priorities, to address the very real needs that West Virginia and other states face in this tough economy. But ultimately, defending America’s citizens from danger is a responsibility whose costs we must bear.[/quote]

With this botch up, he shows he is not in fact ready to serve as Commander in Chief; embarrasses Rockefeller and makes his argument against Hillary ludicrous. So she didn't read the NIE before voting for the AUMF. Rockefeller, his supporter, did and voted for it and strongly endorsed it anyway.

And with such a "brilliant" brain trust http://www.pittsburghlive.com/x/pittsburghtrib/opinion/columnists/datelinedc/s_555077.html>Obama's brain trust at his back, too.

[Elliott]

He and his staff make stuff up about McCain. Why not Rockefeller?

[SteveMG]

As a member in good standing of the Club of Steve, I wish to disassociate myself completely from the above fellow member's comments.

Yes, we need to tighten the standards for membership a bit.

[clarice]

There are errors in the article (ie., Ayres is not a trusted consultant and in any event was Weatherman, not sds) but per the article Rice so angered the Eritreans that as a 270k block they all voted against Clinton.
http://www.pittsburghlive.com/x/pittsburghtrib/opinion/columnists/datelinedc/s_555077.html>Obama Brain trust

[narciso]

As with the Wahhabi sponsored HRC 'kangaroo
court' against Mark Steyn, the point is not
to win the lawsuit; it's to discourage the
idea of anyone considering the practice. SLAPP lawsuits work on that principle, just like the aborted CAIR sponsored suit against "John Does" in the Minneapolis Imam case. Or the lawsuits against Boeing subsidiary Jeppson Aviation for their part in the rendition network, the path of the suits against Black Water, the war crimes suits against Rumsfeld, Jose Padilla's attorney lawsuit against Yoo, et al

Consider how the conviction of Miller & Felt(yes that Deep Throat)for surveilance
irregularities of Felt's friends in the Weather Underground, along with Biden's FISA
discourage any aggresive overseeing of terrorist suspects; aka Mousaoui, more than
a quarter century later. There are more regional precedents for these behavior patterns. A lesser known example was the prosecution of two CIA clerks involved in the CHAOS/Minaret program. The pardoning of
Felt and Miller by Reagan, in an ironic turn of events, did some to restore the balance. (Ironic, because Felt's gripe against Nixon, undermined the larger FBI &
CIA counterintelligence program, which would culminate with Levi's drastic new
restrictions, the Rockefeller Commission
hearings and FISA while clearing a path for Reagan) In NYC the prosecutions against the Condors and subsequent dissolution of other aggressive pro-active NYPD units preceded the recent uptake in Crime in that era; reversing the hard won gains of the
Guiliani administration. Closer to home, down here in South Florida, similar actions
against units like Miami' "Jump Out" Boys
has preceded the rise in violent crime, particularly in the 'socio-economically
disadvantaged neigborhood, that Al Sharpton,
'mau-maued" in favor of. By the way, is Obama a Kikuyu or more likely a minority
Luo, like his kinsman, Odinga?

[MayBee]

Suggestion for Obama's explanation of the mistake clarice tells us about:

"Of course I know that Rockefeller voted for the war. But if it weren't for George W Bush, he never would have been asked to make that vote."

[MayBee]

porchlight-
are you here?
Yesterday I asked if there were any record of Obama supporting the war in Afghanistan before it happened. Do you have a way to look that up? Does anybody?

[clarice]

Heh--I think this is one of those mistakes that it's very hard to get out of MayBee.
Like being caught by your spouse while in bed with his best friend.

[MayBee]

bmaz's response to Tom Maguire on Drum's site:

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

Thoughtful AND engaging!

[clarice]

bmaz:"Tom Maguire is a wingnut troll that was summoned forth ..." Summoned forth by whom? You learn something new every day.

[TM]

Tom Maguire is a wingnut troll...

Witty and responsive.

As to Steve's point that liars lie and hiders hide, well, sure.

My new theory - a member of the Bush family was at the grassy knoll firing at Kennedy, and Bush 43 ordered the destruction of the WTC. Of course, he is lying about it and hiding the evidence, but Steve can fill us in on the rest.

Or failing that, maybe Steve can help us understand why neither Drum nor bmaz seem to be even aware of the layer of lies I have exposed - shouldn't their story include the real headline stuff about perjury, lying to Congress, Bush lying on national television, etc?

[kim]

Yeah, how do get summoned? I just got banned.
============================

[J Laver]

Something that is far more likely here is that Madame Pelosi and company have signalled to the telecom companies that they have nothing to worry about. Now that would be a story!

[Porchlight]

Hi Rich and MayBee - sorry for the delay, I was busy last night and am just getting online this morning.

I did look for Obama statements on Nexis re: Afghanistan and found almost nothing. Searching "obama" and "afghanistan" between 9/1/11 and 12/31/03 yields just a couple of hits along these lines, from Nov. 2003 in the Sun-Times:

I talked to all of the major Illinois Democrat Senate contenders about whether they would have voted for the $87.5 billion supplemental appropriation package President Bush requested for Iraq and Afghanistan....

Three Democrats -- Pappas, investor Blair Hull and Illinois Comptroller Dan Hynes -- said they would have voted for the $87.5 billion appropriation.

Four Democrats -- state Sen. Barack Obama (D-Chicago), attorney Gery Chico, health care executive Joyce Washington and radio talk show host Nancy Skinner -- said they would have rejected the $87.5 billion measure.

All the hits are post-Iraq invasion and reference his Senate campaign position on the funding package - nothing at all from Obama on Afghanistan proper.

Rich, I'll look for Rice and the Niger coup...

[Porchlight]

Oops, that would be 9/1/01 above...

[Other Tom]

I don't know anything about this rude fellow Bmaz, he of the ad hominem irrelevancy, but I would appreciate it if someone would summarize his theory of this indemnification issue. In particular, how in hell could the president indemnify any civil litigant, whether he did so secretly or otherwise? Is that question addressed by either Bmaz or Drum? (Please, please don't tell me to go read what they say--I'm busy today.)

[RichatUF]

Maybee-

This was a "scandal" in Aug 2007 when he accused US and NATO forces of wantonly bombing civilians in Afghanistan Protein Wisdom

I haven't seen anything about his public statements re 2001-02-a place to look would be the speech archive of Farrakhan and Wright and the Chicago area anti-war protests in the Oct to Nov 2001 time frame. They seem to have been organized by the religious left and other commie groups and Islamist sympathizers.

To go with clarice's link on B♥O's foreign policy brain trust, this list from wiki- seems exhaustive:

Barack Obama's foreign policy advisers include Richard Danzig, Mark Lippert, Anthony Lake, Susan Rice, Gregory Craig, Dennis McDonough, Daniel Shapiro, Scott Gration, Sarah Sewall, Ivo Daalder (note: Bosnia, European Affairs), Jeffrey Bader, Mark Brzezinski, Zbigniew Brzezinski, Richard Clarke, Roger Cressey, Philip Gordon, Lawrence Korb, James Ludes, Robert Malley, Bruce Riedel, Dennis Ross, Mona Sutphen, and Samantha Power

[Appalled Moderate]

bmaz has more to say at Drum's site, much of it in terms of personal invective directed at our host and Mr. Philbin (who is some evil telecom toady, apparently). But this nugget is interesting:

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 %$%.

In other words, Pelosi, Reid, Rockefeller et al are in on this mass swindle of the American public. Wonder if Mr. Drum buys into that? I'd ask in his comment seciton, but I was banned long ago for some reason or other.

It's tines like this when the anonymity of a comments section is annoying. Because bmaz is allegedly an attorney with knowledge of these issues. Fine. Who's paying him now, and is he at work to advance the interests of his clients (who may be, for all we know, be the people suing the government.)

Well, I'm glad to see the left can still appall me too.

[kim]

The next step in the delusion is that the administration is blackmailing the telecoms into acquiescence. These progs and their projections just know Hillary would do it, and can at least hope that Obama would. Change ain't easy, lads and lassies.
==========================

[kim]

Criminality? What hogwash. What about class benefits? This may yet end up a big election issue, because class and individual damages will not be shown, and class benefits are intuitive to the thinking members of the electorate.

Oh, wait.
=====

[Elliott]

Rich,

That was truly inspired. If I may be so bold, how about adding this to the rotation: B✞O?

[MayBee]

Thank you, porchlight. You are great.

I have a theory that he would have opposed it, but it seems it will be an difficult theory to prove.
Which means I'll state it and attack anyone who disagrees with me as a Leftwing Troll summoned forth....

(It is interesting that he "would have" voted against war appropriations in 2003, which is the same timeframe his dear Captain reports he was short of supplies for the Afghan war.)

[Other Tom]

Thanks AM. If I understand correctly, the congress is party to this whole scheme, and is taking part through secretly-passed legislation. Wowee. And this clown is a lawyer?

Concerning damages, my understanding is that they are statutory, and require no showing of actual injury. If applied, they would be far more than enough to bankrupt each defendant.

[glasater]

"Barack Obama's foreign policy advisers include Richard Danzig, Mark Lippert, Anthony Lake, Susan Rice, Gregory Craig, Dennis McDonough, Daniel Shapiro, Scott Gration, Sarah Sewall, Ivo Daalder (note: Bosnia, European Affairs), Jeffrey Bader, Mark Brzezinski, Zbigniew Brzezinski, Richard Clarke, Roger Cressey, Philip Gordon, Lawrence Korb, James Ludes, Robert Malley, Bruce Riedel, Dennis Ross, Mona Sutphen, and Samantha Power"

Well--there are enough egos in that group to cause all kinds of chaos down the road--should Obambi get elected.

[Elliott]

I see the New York Post beat me to that one: Smeared O Has 'Cross' Words.

[clarice]

Another day, another Obama foreign policy lie uncovered. http://www.americanthinker.com/blog/2008/03/canadian_diplomatic_memo_dispr.html

[Rick Ballard]

MayBee,

I think today's concatenation for BHO is B♥✞O. Inshallah.

[clarice]

http://www.americanthinker.com/blog/2008/03/canadian_diplomatic_memo_dispr.html>Canadian diplos write *gasp* memos

[RichatUF]

Elliott-

I would say yes if I could figure out which character you're using...

B♥O

B♠O

B♣O

B♦O

maybe diamonds...goofy typepad

[MayBee]

B♠O

Oh, no. You can't use that one.
---
Rich- thanks for the BO info. I just know, in my heart of hearts, that he is a man of the "War. What is it good for?" variety.

[Slartibartfast]

"Of course I know that Rockefeller voted for the war. But if it weren't for George W Bush, he never would have been asked to make that vote."

If Obama had had his way, there never would have been a war to begin with, and so Rockefeller's vote would have been a road of embarrassment never traveled.

It's just one of the bonuses a policy of never having gone to war to begin with brings.

[cboldt]

-- Concerning damages, my understanding is that they are statutory, and require no showing of actual injury. If applied, they would be far more than enough to bankrupt each defendant. --

The statute (50 USC 1810) requires a showing of being "an aggrieved party," i.e., one must "have standing" in order to prevail. While the damages claimed are huge, as though there are millions of "aggrieved parties," a more realistic appraisal indicates that actual (statutory) damages is minute. See comments by Senators Bond, Specter, Rockefeller, etc.

I'm still at a loss as to why Congress would entertain leaving that section of the law in place. If civil suits are so risky to national security (on account of exposing secrets if the suits proceed, and on account of stifling cooperation by the telecoms and others), you'd think Congress would remove the statutory cause of action altogether, looking forward.

[Elliott]

Rich,

It was a cross.

Clarice,

I thought this quote on the NAFTA brouhaha from MSNBC's Firstread gave a nice insight into the mindset of many in the press:

"Of course, we have another question: Why is the conservative Canadian government leaking this memo and getting involved in a Democratic primary race?"

Bad leak.

[RichatUF]

Maybe-

B♠O

Looks like we have a winner!

[RichatUF]

Elliott-

B†O

see if this works...

code is "& dagger ;" without the quote marks or the spaces †

[RichatUF]

cheat sheet

[clarice]

Pbama's outdoing Carter--inspiriting our enemeies and pissing off our friends even before the election!

There's a code for those symbols? I imagined you guys hand drawing them pntp the itty bitty typepad posting space.

[Elliott]

It looks like it's a browser issue. I have two and everything displays properly in one, but not everything does in the other.

[MayBee]

Elliot:

Of course, we have another question: Why is the conservative Canadian government leaking this memo and getting involved in a Democratic primary race?

Please visit www.afterCanadaStreet.org for more information.

[paul a'barge]

I've got my sordid little fingers crossed that BushCo idemnified the Telcos. Right on, Cheney.

Protect America, what ever it takes.

[sbw]

As a member in good standing of the Club of Steve, I wish to disassociate myself completely from the above fellow member's comments.

And considering the juvenility of Stephen's trollishness, I suspect I have seniority in naming and and am reclaiming "Stephen" for my use and delegation to others. SteveMG is welcome to use it.

[kim]

Indemnified, blackmailed, put Plame on the case. Whatever it takes.
======================================

[Elliott]

Please visit www.afterCanadaStreet.org for more information.

That's awfully amusing.

[Rick Ballard]

Rich,

Does it seem to you that we've instituted an accelerated reach out and touch someone program in the past month or so?

Two good shots in Waziristan, one in Somalia and probably some "help" to Uribe in sending a few narcoterrorists to a well deserved reward. An attentive press would use these actions to press RW and BHO about what decisions they might take in these "Red Phone" moments.

If an attentive press existed.

[Other Tom]

Paul a Barge, please let us know just how the president is said to have indemnified these defendants. I maintain that it is impossible for that to happen, but I'm willing to listen to anyone who can suggest how it might be done.

Prompted by Cboldt, I actually undertook to read the statute, as follows:

"An aggrieved person...who has been subjected to an electronic surveillance...shall have a cause of action against any person who committed such violation and shall be entitled to recover...[not less than $100 per day of violation]." On the face of it, it's hard to determine whether simply being subjected to the surveillance makes one aggrieved. I suppose it doesn't; otherwise the "aggrieved person" language would be surplusage. But the plaintiffs' lawyers sure think they're sitting on a gold mine.

Now I'm off to hunt for the comments of the various Senators.

[RichatUF]

Rick-

Does it seem to you that we've instituted an accelerated reach out and touch someone program in the past month or so?

It does...

The actions in SA are a real headscratcher. At some point the pre-Chavez, professional military that still has some power in Venezuela wouldn't want to be embarrassed and his actions re Columbia are pushing the limits.

Another thing that I was thinking about wrt Columbia and FRAC and Israel and Palestinians is that both countries figure that they have until January 20th 2009 to greatly reduce the security threat posed by a possible incoming Dem admin. Weaken or eliminate the Dems "peace partners" and it enhances their negotiating position

[Other Tom]

Can't find their comments relating to standing...

[Neo]

I have to agree with clarice.

When I read Jay Rockefeller's endorsement, it struck me that he was in fact saying ..

Vote for Obama, he's not a dunderhead like myself and Hiliary

With friends like him, who needs enemies.

[clarice]

Don't forget Ecuador. Colombia just chased and killed some Farc who were operating just across the border in Ecuador and captured documents revealing Ecuador's protection of the Farc. Ecuador's president has been caught with his pants down and has responded by tossing out Colombia's Ambassador.
Wonder if that evidence is going to find its was to the OAS. Surely, it's a violation of the OAS charter.

[cboldt]

-- On the face of it, it's hard to determine whether simply being subjected to the surveillance makes one aggrieved. --

I had the same initial reaction, but concluded that 1810 aims to cover either: (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

BOND: I think the suits [civil suits empowered by federal privacy statutes] are designed to cripple our intelligence community. There are not going to be significant judgments awarded no matter what they say because anybody who was intercepted would have to come in to court and say they were intercepted and prove harm. I really question whether they can do that.

[Neo]

Is the whole NAFTA "thing" by Obama and Hiliary really just an attempt to make sure the convention doesn't run to Al Gore ?

Afterall, Al "won" the NAFTA debate with Perot.

[kim]

Oh, please, nominate the Gorebellied Fool.

The only one I'm really afraid of is Howard Dean. Watch him turn on Obama after Hillary is put away.

See the Kos article today through RCP.
=======================

[cboldt]

Mr. SPECTER.The likelihood of verdicts being rendered, I think, in my legal judgment, is very remote. But that doesn't eliminate the requirement and the practice of keeping the courts open to make that determination.

Specter went on, and I found this to be quite interesting. He's basically admitting that "substitution" doesn't bode well for the plaintiff either. Heheheh.

On the other hand, by the same token, the state secrets defense will be available. In the lawsuits that are being prosecuted now against the telephone companies, the government has intervened to assert the state secrets doctrine. In fact, the Government has precluded the telephone companies from saying very much under that doctrine. When the Government is substituted for the telephone companies, the Government will retain the defense of the state secrets doctrine.

I'd have to dig around to find Rockefeller's statement

.

I also have a vague recollection that DNI McConnell also opined that awarded damages / judgment aren't themselves the issue. The problem is allowing public access to the courts, on the issue of government surveillance.

[RichatUF]

clarice-

Indeed. Didn't realize that Ecuador was part of the Iranian-South American Axis of Antagonism. Though I am beginning to think that the case from Miami a few weeks back might have been much bigger than Chavez sending some bribe money to Argentina.

[Jane]

In particular, how in hell could the president indemnify any civil litigant, whether he did so secretly or otherwise?

OT,

I hear when you are elected to be President, a big pile of money is left in one of the bedrooms at the end of the hall. Only the president (and co-president if applicable) have access, and the money can be used for a variety of causes - tipping waiters, pizza from Dominoes and indemnifying telcom companies. Every week someone from the mint goes into the room thru the roof wearing an invisible costume and replenishes the coffers.

Hope that clears it up.

And to everyone else, the Sunday Open thread nearly brought me to tears, thanks so much to everyone for being so nice and so fun. I love being among you!

[clarice]

Sweetness and Light has found some now scubbed from the IT interviews with Obama from 2004--THEN he was for missile strikes on Iran and against gay marriage.
http://sweetness-light.com/archive/obama-was-for-hitting-iran-against-gay-marriage>Then and now with Barry
No wonder he's fighting getting off that c Hosanna filled cumulous.

[clarice]

Jane, very funny. As for the B-Day greetings, Hit blackmailed us. (Seems he got the FBI records when Hill was finished with them.)

[Rick Ballard]

Clarice,

Correa (Ecuador) has been pulling the three monkeys act re FARC for some time - with pats from Chavez for doing so. Uribe's action in Ecuador is of a piece with our strikes in Waziristan and Somalia. Lawless men in lawless territory are experiencing summary justice via home delivery.

Rich makes an excellent point concerning the Venezuelan military. Hopefully they will arrange for Chavez to experience a premature detonation of his plans to for a communist SA.

I wonder if we're seeing a "why waste the chance" set of actions based on the possibility that none of the top three contenders for the Presidency have the backbone to order these type of interventions? A return to the days of the Camel Butt Seeking missile stike would sure waste a lot of gathered intelligence.

[Other Tom]

"...anybody who was intercepted would have to come in to court and say they were intercepted and prove harm."

I hope he's right, but I have my doubts. The EFF action is San Francisco (and maybe some others) has been certified as a class action. The class representatives, after discovery, would present the court with the list of all those who had been surveilled, and those on the list would simply sit back and await their piece of the settlement--they wouldn't have to "come into court." As for showing harm, well, I just don't know where he gets that...

There’s also this: “In an August 14, 2007 question-and-answer session with the El Paso Times newspaper which was published on August 22nd, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector assisted with the warrantless surveillance program. ‘Now if you play out the suits at the value they're claimed, it would bankrupt these companies,' McConnell said, arguing that they deserve immunity for their help.”

I'm not sure any of these guys know where the courts will go with this stuff. I remember being taught securities law by Louis Loss, who was the author of Rule 10b5, the SEC's anti-fraud rule. Loss said unequivocally that it was not his intention that the rule would ever give rise to a private right of action by shareholders, and he never dreamed that would happen. But the courts allowed such suits by shareholders, including class actions, and the rest is history.

[BD57]

Sedgequill:

In a typical "big deal" indemnification agreement (i.e., the type you'd expect the U.S. Government to enter into with, say, a Telecom), the indemnifying party gets rights AND responsibilities.

The 'responsibilities' are pretty obvious - defend the claim (which means pay the defense expenses) and pay any judgment which might be entered.

The 'rights' typically include the right to control the defense - who the attorneys will be, what strategy will be employed, whether to settle and on what terms. The typical indemnification agreement requires service of a notice of the action / demand for indemnification before the obligation to defend kicks in.

IMO, Drum has nothing because:

1) There's no keeping something like this secret - "The Bush Administration entered into agreements with the telecoms to indemnify them for any loss they suffer as a result of violating Americans' constitutional rights." IMO, there's simply no way that could happen & the lid stay on it.

2) Where would the $$$ come from? I'm not aware of the Executive Branch having a line item in any budget called "Totally miscellaneous & discretionary."

3) The telecoms would be represented by darn good attorneys in negotiating any such agreement. They'd insist upon proper authorization for the agreement - they wouldn't simply take the word & signature of a President.

4) There'd be budgetary issues - the obligation to indemnify the telecom would come due sometime in the future, or not at all. I can't imagine Congress appropriating money to sit & wait & see if something came up; more likely, there'd be a request for funds in the year the obligation was actually realized. Which means the telecoms would be in a "subject yourself to potential liability now, get indemnification later - maybe ... if Congress appropriates the funds" scenario. I can't imagine a competent attorney entering into such an agreement.

5) If a telecom DID enter into such an agreement, then .... there's no agreement. Think about it: the telecom would be assisting in the surveillance based upon ... what? A promise that this President would ask Congress to indemnify you against any hit you might take for cooperating?

Such an agreement wouldn't be enforceable even if entered into - there's no mutuality of obligation.

IMO, the telecoms are staying quiet because they've decided standing near George W. Bush isn't good for them - he's leaving office in less than a year, Congress is already in the hands of his opponents & there'll be no benefit to them from associating themselves with his legislative priorities.

[clarice]

It's all in the budget under White House petty cash, BD57.

[Fen]

Barack Obama's foreign policy advisers include -

Can they explain why Obama supports unconditional negotiations with the Iranian leadership, but not the same with Al Queda leadership? Obama will barter with someone like Ahmadinejad, but not with Osama bin Laden? Whats the difference?

[clarice]

Well, Rick, this would expplain why the Bianca Jagger wing of the Dem party is trying to block all aid to Columbia, wouldn't it? A mean a freedom loving country fighting thuggish terrorists..why, it sounds like that dastardly Israel, doesn't it.

It looks to me like we are working with Colombia and plan some nice surprises for Hugo, Ecuador and their running dogs.

[cboldt]

-- I'm not sure any of these guys know where the courts will go with this stuff. --

That's why, in part, the big push for Congressional immunity. I still wonder though, given the offered justification for that (to maintain cooperative attitude, to prevent disclosing state secret), how the presence of a civil remedy looking forward is tolerable. Wouldn't a responsible Congress remove the civil remedy altogether?

I don't recall if it's EFF, ACLU or both who claim that Constitutional claims can't be extinguished by a statutory enactment. Interesting (and circular) at any rate.

FWIW, my opinion is that even if the suits were permitted to proceed, the size of the eventual judgment would be negligible. I do understand the certification as a class action, but that just provides some efficiency for filing and hearing the basic argument. Each person "in the class" has to provide evidence that they were surveilled, and I don't accept the premise that discovery will result in the production of a "these people were surveilled" list.

And see Al Haramin case for the results when a person does come into possession of evidence of being on a surveillance list.

[Other Tom]

I conclude that the whole "indemnification" thing is pure moobattery, and not worth much more time.

Obama has made it clear he's willing to talk to just about anybody, except a lobbyist representing an American business.

[cboldt]

-- They'd insist upon proper authorization for the agreement - they wouldn't simply take the word & signature of a President. --

That's exactly the same point/argument about orders for surveillance. That given FISA and its structure, telecoms will insist upon "proper authorization." And yet according to the SSCI report, some surveillance was authorized w/o a warrant, and even w/o the signature of the AG. So, what constitutes "proper authorization?"

And if the telecoms are willing to go outside of statutory form when invading privacy (i.e., they don't insist on proper authorization, they go on the word of the president), they'd also be willing to proceed without "proper authorization" on other things.

One other thing puzzles me. Senator Bond and others have suggested that "cooperation" wouldn't be forthcoming in criminal investigations either. The example used is kidnappings. I take it then, that telecoms undertake warrantless surveillance for all sorts of reasons, not just foreign terrorism.

[Other Tom]

"Wouldn't a responsible Congress remove the civil remedy altogether?"

Well, sure--but when was the last time we had a responsible Congress? The whole thing is simply crazy, and is driven by pure BDS.

If these cases were pending anywhere but in San Francisco, I would think it would be very hard to persuade a jury to render any large verdict against the companies if they put on evidence of having acted in good faith. But I've tried jury cases in that jurisdiction, and I think they're as hostile to corporate defendants as any in America, even without throwing in the connection with Bush. And the Ninth Circuit panel to which any appeal would go in the first instance is an absolute disaster, headed by arch-liberal Harry Pregerson.

At the end--the very end--of the day, these defendants are not going to be looking at large judgments against them, but how we get from here to there is anybody's guess.

[Rick Ballard]

It would be interesting to read the section of the "indemnification" which relieved the telcos from reporting the "indemnification" itself ala Sarbox.

Lefty vaporware. 100% whole cloth.

[Other Tom]

Cboldt, there's an important distinction between the FISA "proper authorization" and that of the mythical indemnification: the latter requires money.

[Tom Maguire]

All the hits are post-Iraq invasion and reference his Senate campaign position on the funding package - nothing at all from Obama on Afghanistan proper.

FWIW, in his famous Sept speech opposing the Iraq war Obama starts by declaring he is not against all wars and then cites a few he supports, namely, the Civil War and WWII. Bold! And I'll bet he would come out in favor of the Revolutionary War if pressed.

But closer to our own era he is silent on Korea, Somalia, and Kosovo. Most notably, for current purposes - he can't seem to bring himself to say "Afghanistan".

Here we go:

I don’t oppose all wars.

After September 11th, after witnessing the carnage and destruction, the dust and the tears, I supported this Administrations pledge to hunt down and root out those who would slaughter innocents in the name of intolerance, and I would willingly take up arms myself to prevent such tragedy from happening again.

I don’t oppose all wars.

I am thinking he likes to talk like a centrist and vote like a lib.

[Tom Maguire]

Oh, Appalled - yes, I picked up on the newly-expanded bmaz theory that the lying cover-up of indemnification extends to Pelosi and Reid, who are covering for Bush on this one. Uh huh.

Oh, well - sit down with clowns, see a clown show...

[MayBee]

Thank you, TM!

I wonder if this paragraph, further down in the same speech, gives us a better idea what he means by the "pledge to hunt down and root out":

You want a fight, President Bush? Let’s finish the fight with Bin Laden and Al Queda, thru effective, coordinated intelligence, and a shutting down of the financial networks that support terrorism, and a homeland security program that involves more than color-coded warnings.

I don't see increasing Afghan troop levels in there. Very very interesting.

This is an interesting line in there, too:

Let’s fight to make sure... that the arms merchants in our own country stop feeding the countless wars that rage across the globe.

[cboldt]

-- IMO, the telecoms are staying quiet because they've decided standing near George W. Bush isn't good for them --

The risk of criminal prosecution for disclosing classified information may play a role too. And I'm sure they are paid for executing search orders, even the TSP. Carrot and stick, works every time.

[clarice]

TM--This Drum business has the potential to involve more people than the Trilateral Commission or the Protocols of the Elders of Zion. *Gasp, choke* THEY are all in on it...ALL...................................................