This paragraph in Carl Hulse’s NY Times piece on FISA today stood out:
Ben Powell, general counsel for the director of national intelligence’s office, said some carriers had already asked whether they could be compelled to cooperate even without legal protection, although he indicated that none had actually threatened to halt operations. [Emphasis added]
This is incredibly important to the retroactive immunity debate: the telecoms are not threatening to stop helping the US government monitor suspected terrorists if they don’t get retroactive immunity. They will continue to assist in intelligence collection even if they don’t get retroactive immunity.
Glenn Greenwald is right:
Outside of National Review, K Street, and the fear-paralyzed imagination of our shrinking faux-warrior class, there is no constituency in America demanding warrantless eavesdropping or amnesty for lawbreaking telecoms.
Which, naturally leads to Duncan Black’s conclusion of the Bush administration’s motives: “I don’t actually believe this is about protecting the telcoms; it’s about protecting themselves.”
Moreover, to get back to Powell’s acknowledgement that the telecoms are not trying to stop their work with the government over retroactive immunity, Greenwald also makes clear that non-cooperation for legal requests from the government is not an option.
telecoms are required to cooperate with legal requests from the government. They don’t have the option to “refuse.” Without amnesty, telecoms will be reluctant in the future to break the law again, which we should want. But there is no risk that they will refuse requests to cooperate with legal surveillance, particularly since they are legally obligated to cooperate in those circumstances. The claim the telcoms will cease to cooperate with surveillance requests is pure fear-mongering, and is purely dishonest. [Emphasis in the original]
The telecoms won’t stop partnering with the government because when the requests are legally made – with court orders and warrants, as originally laid out in FISA – they have no outlet for refusing the requests. But, as we saw with Qwest, when the requests are not accompanied by a warrant, the companies are allowed to say no.
Nonetheless, according to the Director of National Intelligence’s general counsel, no telecoms are threatening to stop cooperating with the government in the absence of retroactive immunity. The only scenario when their cooperation would be in question would be when the government asks for their help and does not have a court order, and the telecoms are still saying that they’ll work with the government in those situations. Separate from any consideration of what that says about the conduct of the telecom companies in relation to FISA law, it shows that there is zero need for retroactive immunity for surveillance to move forward, as the telecoms are not making it a condition on their cooperation in warrantless surveillance.
Jack Balkin has a similar take as Atrios:
In essence, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law.
It’s all about the Bush administration’s lawlessness, folks.