(We’ve discussed Sen. Feinstein’s relationship with telco immunity quite a bit here, so here’s one more. – promoted by Brian Leubitz)

If you’re like me, you were upset about the thought that the Congress would give telecom companies immunity for participating in a warrantless wiretapping program set up by the Bush Administration.  If you’re from California like me, you were upset that your Senator, Diane Feinstein, would actually have considered supporting such a horrendous idea.  And, if you’re like me, you contacted Senator Feinstein about it.

It seems like it was a long time ago that I wrote to Senator Feinstein, and I frankly expected that she would blow off all of us.  But tonight, I received a response from her via email.

(This is cross-posted at Daily Kos.  People there suggested I post here.  That was a great idea.  I should come here more often.)

Here’s the text of the letter I faxed to her office (yes, I use the fax, because it is much more likely to get attention these days, it can’t easily be filtered like email, and while it exists on paper like a letter, it won’t languish for weeks in the Senate basement waiting to be electrocuted).

Now that I’m looking at the letter, it turns out it was a long time ago.

October 20, 2007

Senator Diane Feinstein

United States Senate

331 Hart Senate Office Building

Washington, DC 20510 Via Facsimile

Re: FISA Telecom Immunity

Dear Senator Feinstein:

It has come to my attention that you are undecided as to whether you will support changes to the Foreign Intelligence Surveillance Act (FISA) which will grant retroactive immunity to telecommunications companies for their having provided information to the government without warrants when such actions were clearly illegal.  I am writing to tell you that in light of what we do know about the program, the fact that you would approve of it at all is bad enough, and the possibility that you would give immunity those who participated in illegal conduct is simply perverse.

Let me summarize the situation as I understand it:

1) On October 13, 2007, The Washington Post reported that based on documents released from the trial of Joseph Nacchio, former CEO of Qwest Communications, that the government had enlisted the telecommunications companies’ assistance with its warrantless wiretapping program (the program) on February 27, 2001, fully six months prior to the attack on the World Trade Center (9/11);

2) While Quest refused, maintaining the program was illegal, other companies did participate;

3) At least one telecommunications company, Verizon, not only participated, but also demanded and received payment of $1,000 each time it provided information pursuant to the program;

4) Verizon was paid for its participation over 700 times;

5) The program, and telecommunications companies’ illegal acts in support of it, failed to prevent 9/11;

6) According to fully corroborated testimony by James Comey before the Senate Judiciary Committee (upon which you sit), on March 11, 2004, although it had previously done so, the Department of Justice (DOJ) refused to affirm the legality of the program, but the President allowed the program to continue, despite DOJ’s refusal;

7) The President, on April 20, 2004, publicly denied such warrantless wiretapping was taking place;

8) In December 2005, the existence of the program was disclosed by The New York Times;

9) In response to the disclosure, the President admitted to the existence of the program, but claimed that it (a) began after 9/11, and (b) prevented an attack on the Library Tower in Los Angeles (which the President called the “Liberty Tower”);

10) Subsequent investigation revealed there was probably no imminent or even credible threat to the Library Tower;

11) In the ensuing months and years, the Administration has claimed that such warrantless wiretapping has been conducted very rarely, and only in extreme circumstances;

12) Subsequent investigation by the FBI’s Inspector General revealed that such a claim is patently false; the FBI has abused its ability to issue National Security Letters and obtain private communications without warrants on hundreds of occasions, and many if not most of those letters were issued in connection with investigations wholly unrelated to terrorism;

13) On August 3, 2007, 60 Senators, including you, voted for the Protect America Act (PAA), which gives the Administration increased ability to engage in warrantless wiretapping;

14) After the PAA became law, several members of Congress indicated the Administration had warned them of an imminent threat of a terrorist attack upon Congress, which bore upon their votes;

15) Subsequent investigation reveals there was no such imminent threat;

16) In the ensuing weeks since the passage of the PAA, the President has claimed that the members of the “Gang of Eight” in Congress had been fully briefed on the warrantless wiretapping program;

17) At least three members of the “Gang of Eight” have indicated that they were not so briefed;

18) The President continues to claim that the warrantless wiretapping program was undertaken in response to 9/11.

To be even more succinct, the warrantless wiretapping was illegal and the telecoms knew it was illegal.  They participated anyway, and even chose to profit from their illegal participation.  And now, you are “undecided” as to whether to give them immunity for their illegal acts.

Let me be clear how I stand on this issue: you took an oath to support and defend the Constitution of the United States; you were not sent to Washington to be an accessory to Constitutional violations.  You swore you would well and faithfully discharge your official duties; you do not do so by rewarding those who would violate the Constitution and FISA with immunity for their illegal conduct.

“Leadership” to me, means you must act with courage and the determination to do what is right.  If the President wishes to pardon the telecom companies for their criminal conduct, he may try to do so, and he will show us all what a shockingly poor excuse for a leader he is.  However, he cannot give the telecom companies immunity from civil liability by himself; he would require accomplices in the House and Senate.  If you give the telecoms that immunity, you are the President’s accomplice, and as far as I am concerned, you will be just as culpable for criminal conduct that destroys our liberty as the President and those companies.

The thought that my United States Senator, who comes from a state which explicitly guarantees its citizens a constitutional right of privacy, would even have to think about whether to give immunity to those who would violate that right, expect to be paid for the privilege, and further expect to suffer no consequence whatsoever, makes me feel physically ill.  Should she actually do so, my sickness will quickly turn into disgust and outrage.

I have had my differences with your positions on issues in the past, but I have largely supported you, and I admire your determination to get to the bottom of the U.S. Attorney scandal (even though I am suspicious of your motivation for doing so).  My support, thin as it is, will evaporate entirely should you support telecom immunity.  Indeed, I will not be indifferent to what I would consider to be the most important issue that you have to deal with in the Senate.  If you cave to the Administration and the telecom industry, you will demonstrate to me you are devoid of the leadership qualities I consider necessary for you to be my Senator, and I will actively seek an alternative.

I hope that you will receive this letter in the spirit in which it is offered.  This issue is simply a “deal breaker” for me.  I urge you, in the strongest terms possible, to oppose immunity for the telecommunications companies who have participated in the warrantless wiretapping program.

Very Truly Yours,

greggp

Here’s her response (and after only THREE MONTHS).

Thank you for writing regarding the Bush Administration’s request for legislation that would provide immunity for telecommunications companies that are alleged to have provided assistance to the National Security Agency after September 11, 2001. I appreciate your thoughts on this topic, and welcome the opportunity to respond.

The legislation to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) was debated in the Senate on December 17, 2007, but further action is postponed until January. That legislation, which was written by the Senate Intelligence Committee and approved by a vote of 13-2, would provide immunity for such companies if they were specifically requested or directed to provide assistance to the government.

The Intelligence Committee’s report on the bill includes declassified text stating that the Executive branch provided letters to electronic communication service providers at regular intervals. These letters all directed or requested assistance and noted that the assistance was authorized by the President and was legal. The Committee’s report can be found at http://intelligence.senate.gov…

I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.

I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.

I have also filed an amendment to restore FISA’s exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.

Rest assured that I will make every effort to ensure that new FISA legislation will protect the privacy rights of all Americans without restricting the intelligence community’s ability to protect us from attack.

Again, thank you for writing. I hope that you will continue to write on matters of importance to you. Best regards.

Sincerely yours,

Dianne Feinstein

      United States Senator

So is she that clueless that she somehow thinks that I, or anyone else will be satisfied that she has introduced an amendment to LIMIT immunity?  Did I not make myself clear?

Is there someone in California who wrote her a letter that said, “Dear Senator Feinstein, I think it would be great if you can give the telecommunications companies immunity, as long as you limit it”?  If there is, would that person please send me his or her address so I can give that person a dope slap?

crickets chirping

I didn’t think so.  This was all Senator Feinstein’s idiotic idea.  I think she really is that clueless.

Perhaps I just didn’t make myself clear enough in my letter, so I am going to try to get through to Senator Feinstein here.

NO IMMUNITY FOR TELECOMMUNICATIONS COMPANIES.  THEY KNEW WHAT THEY WERE DOING AND THEY KNEW IT WAS ILLEGAL.  THEY ALREADY HAVE IMMUNITY IF THEY COOPERATE WITH A LAWFUL COURT ORDER, AND THEY HAVE BEEN SO PROTECTED FOR 35 YEARS.  NO IMMUNITY! NO IMMUNITY! And, in case she isn’t sure, NO IMMUNITY!

I guess I will just send her the letter again, and again, and again, until she finally gets the message, if that’s possible.

If you didn’t already know, the Senate Judiciary Committee reported out a FISA bill yesterday that does not grant immunity to telecom companies for participating in the illegal spying on Americans in George Bush’s warrantless wiretapping program.  It’s convoluted, but there were basically two bills, a Title I and a Title II.  Title I had no immunity; Title II did.  Russ Feingold tried to strip immunity from Title II, but he failed, and DiFi voted for immunity.  But at the end of the day, only Title I got reported out.

This is NOT a total victory.  First of all, Harry Reid could decide to bring the Intelligence Committee’s bill, which has immunity, to the full floor.  And there will almost certainly be an amendment calling for immunity on the floor, even if an immunity-free bill is called up for vote.  So the Judiciary Committee basically punted.

But this James Risen article untangling what happened yesterday has an interesting little nugget halfway down the page.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the panel, is pushing a plan that would substitute the federal government as the defendant in the lawsuits against the telecommunications companies. That would mean that the government, not the companies, would pay damages in successful lawsuits.

Senator Sheldon Whitehouse, Democrat of Rhode Island, said in an interview after the vote Thursday that he would support a compromise along the lines of the Specter proposal.

Mr. Whitehouse was one of two Democrats who voted against an amendment proposed by Senator Russ Feingold, Democrat of Wisconsin, that would have banned immunity for the companies. “I think there is a good solution somewhere in the middle,” Mr. Whitehouse said.

Senator Dianne Feinstein, a California Democrat who also opposed Mr. Feingold’s measure, pleaded with Mr. Leahy to defer the immunity issue because she wants more time to consider several compromise proposals.

(I was under the impression that Herb Kohl also voted against the Feingold Amendment -ed.)

Feinstein had no need for compromise earlier in the week.  She was gung-ho for telecom immunity.  Clearly the pushback in the Senate amped up the desire for compromise, even if Specter’s is a fig leaf that would still get the telecoms off the hook while effectively stopping lawsuits through an expected invocation of state secrets.  But I have to assume that the heat Feinstein is taking from the grassroots back in California is driving her thinking as well.  If Leahy passed out immunity she would be seen as the biggest cheerleader for it – AGAIN, after Southwick and Mukasey.  It would be the last straw.  So she’s trying to get out in front and take credit for some kind of compromise that will eventually come.

So the progressive movement can take a little credit for winning this battle, as DFA did in a hyperventilating email last night.  We have not yet won the war, and there will absolutely be a floor fight and a bullshit centrist compromise to work against. 

This isn’t over.

(Also the rest of the bill is pretty good, and has things that the Bush Administration has vowed to reject, always a good thing.  But will the Congress cave?  That’s the big question.)

UPDATE: This DKos post notes that Harry Reid is going to bring up the Intelligence Committee bill as the main bill, with the Judiciary Committee bill as a substitute.  That’s the exact opposite of what he said yesterday.  This is very fluid and there’s likely to be shenanigans.