Bush blinking on telecom immunity: GOP Senator

posted at 7:50 am on May 13, 2008 by Ed Morrissey

George Bush wants to get the stalled FISA reform bill through a stubborn Nancy Pelosi, and according to a Republican Senator, may have blinked first in the stalemate. Kit Bond (R-MO) says that Bush will modify the immunity provisions of the bill to allow a FISA court to determine eligibility for each specific telecommunications company that participated in NSA surveillance programs. The Bush administration apparently hopes that will get the bill unstuck in the House:

Sen. Kit Bond (R-Mo.), vice chairman of the Intelligence Committee, said the White House seems willing to let the FISA court help determine whether phone companies should be shielded from litigation.
Hitherto, the White House has argued that courts should not be involved at all and that Congress should instead write litigation protection into law for companies that wiretapped consumers’ conversations.

Bond said: “I think we’ve come up with some things that would involve the court, but not get to a position where it would endanger the program or the carriers.” ….

Bond said the language, drafted with White House consent, represented a “new provision we’ve come up with” on immunity. He would not give details other than to say that the FISA court would have a role. It is unclear whether the new approach will gain approval from Democratic leaders and negotiators.

Bond said the latest approach is not the one offered by Sen. Dianne Feinstein (D-Calif.) to provide immunity to companies deemed by the FISA court to have acted in good faith on the government’s national security requests.

The telecom issue got resolved in a bipartisan agreement in the Senate months ago, one that won over two-thirds of the vote in the upper chamber. That bill would win approval in the House if Pelosi allowed it to come to the floor, which is why she hasn’t yet done so. Republicans have attempted a discharge petition to get a floor vote, but only have attracted 190 signatures, far short of the majority they need to get around Pelosi.

Elections matter, and this provides a clear example. Pelosi has won this round, and the Bush administration appears to have accepted that reality. They want a resolution to this and a restoral of the NSA’s authority under the new FISA legislation, and they’re now willing to bend on court supervision for immunity grants to get it.

Properly structured, it would pose only moderate risk for the telecoms. As long as the legislation makes clear that any telecom acting under government direction that their actions were lawful will be shielded from liability, it should keep court actions to a dull roar rather than a continuous stream of trial-attorney welfare projects. The mechanism would have to be both clear and final in order to avoid repetitive court actions by restricting jurisdiction for the suits to one specific court, whether that be the FISA court or some other jurisdiction. The conditions would have to be so explicit as to force the court to grant immunity in all but clear cases of unsanctioned intrusions, which none of them would likely have done anyway.

Bush seems willintg to accept a bit of a bloody nose on this in order to reinstate the necessary FISA reforms. If Pelosi still doesn’t budge, then the White House needs to start taking this to the people, working around the Democrats in the same manner they did last year when they stalled FISA reform for most of the session.


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I’ve never understood this controversy. The president has the authority to have bombs dropped on somebody, but he needs a permission slip to listen to their phone calls.

trubble on May 13, 2008 at 8:03 AM

This is a sad, sad day for Andrew McCarthy and others of us who stood by the President on this critical issue.

The Democrats will now crow that they were right all along. The media will agree. And the public, who doesn’t know enough about this issue, will start to think that, perhaps, the GOP was indeed playing this for politics all along.

That’s what the Dems will say. That’s what I would say, if I were the Dems. The media will support that narrative.

Nancy Pelosi was in a box. The president let her out of it.

What, precisely, does a “dull roar” of litigation mean? If you’re one of the telecoms unfortunate to be sued, I’ll bet there’s nothing dull about it.

Companies have a fiduciary duty to their stockholders. If cooperating with the federal government on surveillance means that a telecom has to expect it will have to go to court, in some fashion, then it has to convince its stockholders that it’s worth the risk.

Maybe, that company will take the easy way out and tell the federal government that, with regrets, it can’t afford to cooperate.

You cannot connect dots you don’t have. This chilling of our telecom companies will make it much less likely that they will cooperate with us. That’s means less raw information, which our analysts can then craft into meaningful intelligence, and indications/warning.

THAT means we’ll have to go back more and more to finding our raw information the hard way. With a patrol, of our sons and daughters, walking into a hostile neighborhood to see what happens.

I hope the right side of the blogosphere gets up in arms about this.

Ed, I regret the accepting tone of this article here. This is something we should not accept. This is an item on which we must fight!!!!

Is anybody there? Does anybody care???

smagar on May 13, 2008 at 8:04 AM

I bet companies will be lining up around the block to help the Government in the future.

Sorry, my sarcasm button is stuck down today. I’m in full sarcasm mode.

Snake307 on May 13, 2008 at 8:08 AM

Republicans have attempted a discharge petition to get a floor vote, but only have attracted 190 signatures, far short of the majority they need to get around Pelosi…EM


Any society that would give up a little liberty to gain a little security will deserve neither and lose both…Benjamin Franklin

Good one Ben…!

J_Gocht on May 13, 2008 at 8:11 AM

There’s no way anyone loses to Pelosi in a blinking contest.

WisCon on May 13, 2008 at 8:16 AM

Looks who started the discharge position. Heh.

malan89 on May 13, 2008 at 8:36 AM

Bush needs to Botox up, and take this to the people.

right2bright on May 13, 2008 at 9:00 AM

J_Gocht:

The most dangerous enemy to Israel’s security is the intellectual inertia of those who are responsible for security. – David Ben Gurion

Perhaps you should quote someone more acquainted with terrorism and ruthless killers…

1. Never, never, never believe any war will be smooth and easy, or that anyone who embarks on the strange voyage can measure the tides and hurricanes he will encounter.
2. I would say to the House, as I said to those who have joined this Government: ‘I have nothing to offer but blood, toil, tears, and sweat.’ We have before us an ordeal of the most grievous kind. We have before us many, many long months of struggle and suffering. You ask, what is our policy? I can say: It is to wage war, by sea, land and air, with all our might and with all the strength that God can give us: to wage war against a monstrous tyranny, never surpassed in the dark, lamentable catalogue of human crime. That is our policy. You ask, what is our aim? I can answer in one word: It is victory, victory at all costs, victory in spite of all terror, victory, however long and hard the road may be; for without victory, there is no survival. – Winston Churchill

mjk on May 13, 2008 at 9:05 AM

AAAAAARRRGGGGGHHHH

Exhibit A of the loss of Karl Rove. Rove would have made this the top issue in Congressional races this fall. Just like he framed the 2002 elections as “homeland security vs. public employee unions” he would have framed this election as “homeland security vs. trial lawyers.” There are a number of vulnerable Democrats like my congressmoron Patrick Murphy who have voted in lockstep with Pelosi on this and could have been bludgeoned with it in the fall. If Bush caves on this he may cost the GOP a few seats in the House that could have been regained.

rockmom on May 13, 2008 at 9:18 AM

Any society that would give up a little liberty to gain a little security will deserve neither and lose both…Benjamin Franklin

national security is a civil Liberty. Individual liberties and collective liberty have to balance out given real world realities.

jp on May 13, 2008 at 9:24 AM

“…for without victory, there is no survival. – Winston Churchill
mjk on May 13, 2008 at 9:05 AM

Freedom is a lofty concept and a fragile reality. Once lost, it’s difficult to regain. You’ve already lost a Constitutional and inalienable right and most of you weren’t even aware of it…
http://www.erowid.org/freedom/law/forfeiture/forfeiture_writings1.shtml

Without freedom there is no victory – J_Gocht

J_Gocht on May 13, 2008 at 9:25 AM

The Democrats want the contributions the trial lawyers will kick their way from the proceeds on the ‘class action’ suits that will follow.

tarpon on May 13, 2008 at 9:37 AM

Nancy, “Eat your broccoli like a good boy, George.”

George W., if ever you needed them, stick to your guns.

maverick muse on May 13, 2008 at 9:41 AM

There must be some constitutional middle ground where we can find appropriate measures to insure our national security and at the same time protect our inalienable individual rights without the use of willful and destructive Presidential findings.

J_Gocht on May 13, 2008 at 9:41 AM

The Democrats want the contributions the trial lawyers will kick their way from the proceeds on the ‘class action’ suits that will follow.

tarpon on May 13, 2008 at 9:37 AM

I say let them do it as long as a provision that the families of future terror attacks like this can Sue Pelose and company with their own trial lawyers.

jp on May 13, 2008 at 9:44 AM

There must be some constitutional middle ground

its not unconstitutional, every war time president through our entire history has done similar measures. but relax, nobody is listening to your phone calls unless you call overseas and talk about Jihad or something, espeically in arabic. Then the data mining matrix may pick up the phone call and record it so they can see what is going on.

George Washington intercepted US Mail headed for people he though might be british spies(without a warrant), Read the mail and then placed back into mail to be delivered undetected.

jp on May 13, 2008 at 9:47 AM

I’ve never understood this controversy. The president has the authority to have bombs dropped on somebody, but he needs a permission slip to listen to their phone calls.
trubble on May 13, 2008 at 8:03 AM

The controversy is around whether the President has an authority to listen to phone calls inside the US of A. No one questions his authority to bug phone calls abroad.

Which leads to an interesting question: No one doubts that the President has the authority to bomb Ramadi, but can he bomb Chicago? This question has been bugging me ever since I heard that on 9-11 the Air Force was on the brink of shooting down the airplane that ended up crashing in Pennsylvania. Doing so clearly would have made sense: the people on the plane were doomed anyway, yet shooting the plane down had the potential to save thousands more on the ground. But does the President have the authority to order a plane like that shot down?

factoid on May 13, 2008 at 9:49 AM

Just let it all go, let everyone know Democrats have ended all protections and sit and wait.

Call the bluff.

If there is another attack, Democrats are gone for 100 years.

drjohn on May 13, 2008 at 9:51 AM

jp on May 13, 2008 at 9:47 AM

George Bush’s illegal listening and George Washington’s illegal opening…Hmm?

Two wrongs make a right is a logical fallacy that occurs when it is assumed that if one wrong is committed, another wrong will cancel it out.

J_Gocht on May 13, 2008 at 10:00 AM

The opinion that Bush “listened illegally” is just that – an opinion, not a “fact.”

Mistaking your opinions for facts is also a logical fallacy.

BD57 on May 13, 2008 at 10:19 AM

yes, George Washington did a “wrong”…so what if he saved the country and was able to catch those wishing to undermine it like Benedict Arnold.

you paultards are modern day Benedict Arnolds, and completely clueless as to why.

jp on May 13, 2008 at 10:27 AM

Mistaking your opinions for facts is also a logical fallacy.
BD57 on May 13, 2008 at 10:19 AM

That program operated for four years without court supervision, until the Administration bowed to public pressure in January 2007 and allowed the secret Foreign Intelligence Surveillance Court to review it.
http://blog.wired.com/27bstroke6/2007/08/court-ruling-th.html

J_Gocht on May 13, 2008 at 10:30 AM

They would just have to release some of those tapes of Democrats like Lindauer plotting with the jihadis and point out “This is why the Democrats are opposed to us listening in on terrorists”.

Buddahpundit on May 13, 2008 at 10:34 AM

J_Gocht on May 13, 2008 at 10:30 AM

a true “Constitutional Originalist” finds the FISA courts to be UNCONSTITUTIONAL, because the President has the inherent authority constitutionally. Whereas Congress overstepped its powers after Nixon and watergate seizing power.

jp on May 13, 2008 at 10:50 AM

One persons’ “Constitutional Originalist” maybe another’s’ despot!

The President could have vetoed the congresses’ action.

J_Gocht on May 13, 2008 at 10:58 AM

oh really, here is a debate on FISA held by the Federalist Society. The famous Liberal(of Duke law) who doesn’t beleive in the constitution and ‘original intent’ is on Your side on this. The Constitutionalist Originalist, quoting the Federalist papers and the Founders themselves is on Bush’s side.

http://www.fed-soc.org/debates/dbtid.13/default.asp

jp on May 13, 2008 at 11:28 AM

Today is the day U.S.A died. Bush has decided to cave to insane liberals with not ever ever listening to terrorist talking to one another. Well a Million + will probally die from the next terrorist attack because of Bush caving in. I hope Democrats are happy that millions of Americans will die.

BroncosRock on May 13, 2008 at 11:46 AM

Whatever happened to the golden years of the CIA when they would show up when she was out somewhere alone and have a nice polite chat with her? (sigh)

- The Cat

MirCat on May 13, 2008 at 11:54 AM

The assault on and loss of our constitutional rights and personal freedoms during the last seven years of President Bush’s administration are unprecedented in the entire history of our once great nation.

J_Gocht on May 13, 2008 at 12:10 PM

If listening to alien terrorist phone calls is a crime, I for one would prefer to live with criminals who inform me about the whereabouts of said terrorists than die with neo-liberal patriots feigning concern with the rights of the non-citizen terrorists. Hillary “borrows” 500 FBI files and nothing. GW listens to known terrorists abroad and our civil liberties have never been threatened more.

The Mau Mau have won, pass the Soma.

Angry Dumbo on May 13, 2008 at 12:20 PM

J_Gocht, can you name the Constitutional Rights/Personal Freedoms loss during the last 7 years?
“The assault on and loss of our constitutional rights and personal freedoms during the last seven years of President Bush’s administration are unprecedented in the entire history of our once great nation.”

el Vaquero on May 13, 2008 at 12:43 PM

It’s not too late for the democrats to allow a terrorist event before Bush leaves office. There’s still a few months left on the calendar.

Go for it dems, you haven’t been able to pin anything on Bush yet.
Here’s your chance.

Kini on May 13, 2008 at 12:47 PM

I’m finding myself a bit confused here. I thought the liberal talking point was: “Bush listens to phone conversations.” The actual event is data mining– looking for calling patterns. Who calls what overseas numbers and when. This is the information that would lead to the grounds for a tapping warrant. So, be clear here, who thinks detecting a pattern of calls after the fact, by reference to phone company records, is the exact same thing as listening in on calls? I know I don’t. They are very different things.

DocKen on May 13, 2008 at 1:12 PM

So in other words the United States Congress caved to Daily Kos.

SoulGlo on May 13, 2008 at 2:15 PM

This is why Bush is weak and unable to combat Dems.

He ought to give a speech, outline the issues, namely that Congressional Democrats and Pelosi want terrorists to be able to sue telecoms for helping the NSA eavesdrop on them, and tell the American people he tried but they’re now on their own.

That he can’t stop a terrorist attack because Pelosi and Dems took away the tools he needed. That he believes an attack will come, Americans will die, but Pelosi decided it was more important for trial lawyers to be able to sue telecoms on behalf of terrorists.

Refusing to play hardball is defeatist.

whiskey_199 on May 13, 2008 at 2:46 PM

J_Gocht, can you name the Constitutional Rights/Personal Freedoms loss during the last 7 years? —el Vaquero on May 13, 2008 at 12:43 PM

FBI Tried to Cover Patriot Act Abuses With Flawed, Retroactive Subpoenas, Audit Finds… http://blog.wired.com/27bstroke6/2008/03/fbi-tried-to-co.html

…and there are litterly hundreds of other examples!

J_Gocht on May 13, 2008 at 3:01 PM

I miss Jack Bauer

lsutiger on May 13, 2008 at 6:40 PM

Jack “the Wilde” Bauer is only a figment of a writer’s fertile imagination.

There may have been assets like “Jack”; they’re few and fare between.

J_Gocht on May 13, 2008 at 7:05 PM

lsutiger on May 13, 2008 at 6:40 PM

If you “miss Jack Bauer” you might enjoy “The Company” by Robert Littell.

That novel is by fare more realistic.

J_Gocht on May 13, 2008 at 7:33 PM