(bumped – promoted by Brian Leubitz)

Marcy Wheeler has two excellent stories up today at her new home which I highly recommend to you if you want to understand Dianne Feinstein’s evolving position on FISA and retroactive immunity for the telecoms.  We know that, several weeks ago, Feinstein was wholly in support of immunity, having happily voted for it in the Intelligence Committee.  During yesterday’s floor debate, she offered a couple amendments, both with the goal of putting the warrantless wiretapping program and all questions about it, now and forever, under the authority of the FISA court.  In Marcy’s first piece, she notes the conservative reaction to Feinstein’s amendment asking that the question of immunity be decided by the FISA court instead of the Congress.

over…

Now, before Orrin Hatch started accusing “partisan blogs” of fear-mongering on this debate, he had an apoplectic fit about DiFi’s amendment, lumping it in with more generalized DFH opposition to immunity. He strongly suggested DiFi’s amendment would be a poison pill for him–and presumably the other Republicans following Dick Cheney’s orders dutifully.

And there’s a reason for that. When the SSCI passed their immunity bill, they did so only by inventing the fiction that it was legal for telecoms to wiretap at the behest of the government if they had the authorization of the Attorney General or “certain other officers.” They did so because they know–having read the authorization letters–that one of the letters (presumably the one for March 11, 2004), was signed by White House Counsel Alberto Gonzales.

This is important because the FISA court, being authorized to view classified information, would be able to view all the relevant documents, and may make the ruling that people not authorized to sign off on the wiretapping program did so, which would make the telecoms liable for continuing the wiretapping program beyond March 10, 2004, at a point when the AG and the Acting AG determined it to be unlawful.

In other words, DiFi’s amendment threatens to scuttle the real intent of the immunity provision, protecting Bush from any legal consequences for wiretapping illegally.

We all know how sloppy and reliant on extreme theories of unchecked executive power the Bush Administration is.  This would put them in a tremendous bind.  And Feinstein’s signal that she would “have a very tough time” voting for the full bill without this compromise, which is co-sponsored by Bill Nelson, means that the more moderate faction of the Democratic caucus is not interested in handing over blanket immunity (I reserve the right to be disappointed in DiFi if and when she turns her back on this).

In a later post, Wheeler takes a closer look at the DiFi amendment and her floor statement.  As I noted, Feinstein was initially making all kinds of excuses that the amnesty she voted for in the committee wasn’t really amnesty, that the poor telecom companies can’t defend themselves because Bush is handcuffing them by invoking state secrets, that they acted after 9/11 to help protect the nation (even though the government was asking for telecom help before 9/11), that “These companies have no financial motives in providing assistance to the Government.”  That’s why it was such a surprising outcome to have her next introduce this amendment.  But she goes on to imply that the Bush Administration was relying on inherent authority under Article II to make legal their wiretapping program, and that it’s high time we got some judicial review over that from a court able to hear secret testimony (so the government can’t hide behind the state secrets privilege).  Here’s the relevant part of DiFi’s statement:

The amendment I am going to submit would put before the FISA Court the question of whether the telecommunications companies should, in fact, receive immunity based on the law.

The FISA Court would be required to act, en banc, and how this is, is 15 judges, Federal judges, appointed by the Chief Justice, they sit 24/7, and this is all they do, they would act en banc. They would look at the following: Did the letters sent to the carriers which were repeated virtually every 35 to 45 days over the last 4 to 5 years, did the letters sent to the carriers meet the conditions of law.

Section 2511 of title 18 clearly states that a certification from the Government is required in cases where there is no court order. That is the only two ways that FISA allows this to proceed, by written certification or by court order.

The Government has to certify in writing that all statutory requirements for the company’s assistance have been met. So the FISA Court would first look at whether the letter sent to the companies met the terms of this law. The court would then look at, if the companies provided assistance, was it done in good faith and pursuant to a belief that the compliance was legal.

Finally, the FISA Court would ask: Did the defendants actually provide assistance? If the FISA Court finds that defendant did not provide any assistance to the Government or that the assistance either met the legal requirements of the law or was reasonably and in good faith, the immunity provision would apply.

If the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies. I think the merit of this approach is it preserves judicial review, the method we look at in order to decide questions of legality.

Now, the bulk of the Members of this body, probably 90 percent of them, have not been able to see the written certification, so you do not know what was there. What we ask in this amendment is: FISA Court, you take a look at these letters, and you make a ruling as to whether they essentially meet the certification requirements of the FISA law.

Therefore, there is judicial review to determine whether, under existing law, this immunity should be forthcoming. It is a narrowing of the immunity provisions of the Intelligence bill. I think it makes sense. I read the letters. I am a layperson, I am not a lawyer. I cannot say whether they met the immunity provisions. Others can say that.

But it should be up to a court to make that decision. It seems to me that if the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies.

The key point to make here is that Feinstein HAS seen these letters.  She knows what they say and who authorized them.  She’s claiming that she doesn’t know whether or not the telecoms are eligible for immunity (then why did she vote for it?), but clearly she has a little more knowledge than the average citizen or even the average Senator.  And this gets to the heart of all of the crazy unitary executive theories that the Administration has been making from practically the moment they got into office.

So, there has obviously been a subtle but important shift in Feinstein’s thinking.  And without the concerted effort of the progressive grassroots in California, I think it’s fair to say that wouldn’t have happened.  The Feinstein bloc is now another hurdle for those who want to immunize phone companies for lawbreaking, maybe one that’s insurmountable and can derail the whole bill.  It’s up to the grassroots to hold Feinstein to her word.  Her amendment deserves a full and honest hearing.  If it passes, we can trust the judicial review process to go forward.  But if it fails, the real question is whether Feinstein will be as good as her word, and block the bill for failing to have proper oversight.  This is why we must continue the pressure over the holidays and let her know that we’re still watching.