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.

Update:

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.

Joe Lieberman’s defense of torture is truly astounding. In an articled titled “Lieberman Says Some Waterboarding OK,” the Connecticut Post reports:

“We are at war,” Lieberman said. “I know enough from public statements made by Osama bin Laden and others as well as classified information I see to know the terrorists are actively planning, plotting to attack us again. I want our government to be able to gather information again within both the law and Geneva Convention.”

In the worst case scenario — when there is an imminent threat of a nuclear attack on American soil — Lieberman said that the president should be able to certify the use of waterboarding on a detainee suspected of knowing vital details of the plot.

“You want to be able to use emergency tech to try to get the information out of that person,” Lieberman said. Of course, Lieberman believes such authority has limits. He does not believe the president could authorize having hot coals pressed on someone’s flesh to obtain that information.

The difference, he said, is that waterboarding is mostly psychological and there is no permanent physical damage. “It is not like putting burning coals on people’s bodies. The person is in no real danger. The impact is psychological,” Lieberman said.

Lieberman is squarely in line with John McCain and the rest of the pro-torture GOP.

First, I hope by “emergency tech” Lieberman means emergency techniques and not emergency technology, as I don’t know that water is a technology and I’d rather not care to speculate on Lieberman’s fantasies of how technology can be used to inflict physical and psychological pain to the point of breaking someone.

What strikes me as particularly remarkable is how Lieberman pretends to have standards about how we’re allowed to torture people. Burning coals? No. Drowning? Yes. He has clearly embraced the false notion that the issue of how we torture is one of picking the right items off of a menu and not the existence of the menu in the first place.

Of course, Connecticut is represented by one humane Senator in Chris Dodd. Dodd makes the point that needs to be repeated from the mountaintops:

This month, Dodd bluntly described waterboarding as torture. “Let me be clear: there is no such thing as simulated drowning. When a person is strapped to a board and water is poured into their mouth and nose with no way to get air, that is drowning; that is torture,” he said.

If you can drown, the impact is physical. And like all other forms of torture, waterboarding also has a psychological impact.

I think it’s worth noting, but the impact of Joe Lieberman being primaried was psychological for him. He still hates those Dems who endorsed Ned Lamontpost-primary. No one poured water down his throat, but Joe Lieberman has it out for Democrats like Chris Dodd who believe in the rule of law, the Geneva Conventions, and the simple fact that in the US we do not torture, not even a little bit (and when we find out we did, we don’t change the law to make it legal after the fact).

The psychological impact of Joe Lieberman losing his Democratic primary and bolting the party has led him to endorse a Republican for President and vote with the GOP on partisan votes over 90% of the time this year. All we did was subject him to the democratic process. Can you imagine how actually being tortured can turn suspected terrorists against America? Can you imagine the bile and venom of Joe Lieberman played out on the scale of a terrorist who’s been waterboarded? Psychological impact damages us. Physical impact damages us. Torture is always wrong. This is as uncomplicated as it gets.

Earlier today I’d posted that it seemed likely that the Protect America Act would be allowed to sunset this weekend, based on a combination of Republican obstructionism on getting an extension and that the PAA expiring will not impact our intelligence community’s ability to monitor suspected terrorists. It now seems certain that the PAA will sunset, as the House is going to go into recess without trying to pass another extension.

Jason Rosenbaum at The Seminal has the details of what’s happened:

Nancy Pelosi has stated that the House will go into recess without another vote on FISA, which means the Protect America Act will expire.

Let’s review what happened, shall we?

• The House passed the RESTORE Act in November, an update of FISA that did not include retroactive immunity.
• The Senate was forced to stop debate on FISA after Dodd’s filibuster, leaving the issue open until the new year.
• The Senate took up FISA again, and on Tuesday passed a version of the bill with retroactive immunity and everything else Bush and his fearmongers wanted.
• The President tried to bully the House into passing the Senate version of the FISA bill.
• After an extension failed in the House yesterday, and debate went nowhere today, Nancy Pelosi refused to back down and put away FISA for another day. The Protect America Act will expire.

McJoan at Daily Kos has statements from Pelosi and Steny Hoyer.

House Judiciary Chair John Conyers has said he’ll stick around to work on the legislation and it looks like other key members of the House and Senate will continue to work on next steps with this legislation:

“I have told my colleagues in the House that I am committed to working through this recess and will be discussing this legislation with Chairman Reyes and Senators Leahy and Rockefeller. I appreciate the President’s dedication to seeing this through and hope that he will join me in putting Americans before corporate interests.”

We shall see what this produces, but with House Dems standing strong hopefully retroactive immunity can be removed from whatever bill is sent to the President.

Cross posted at the CREDO Blog.

Representative Silvestre Reyes is a key member in the current FISA fight. Reyes is Chairman of the House Permanent Select Committee on Intelligence. His committee rejected the concept of retroactive immunity last fall, one of the three congressional committees that rejected immunity for the telecoms. He will likely be on the conference committee that hashes out how the Senate and House reconcile their two conflicted pieces of FISA legislation. With all of that in mind, it’s very heartening to see Rep. Reyes send a strongly worded letter to President Bush outlining his commitment to the rule of law and his continued opposition to retroactive immunity.

If our nation is left vulnerable in the coming months, it will not be because we don’t have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations – including al Qaeda — that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Congress has not been sitting on its hands. Last November, the House passed responsible legislation to authorize the NSA to conduct surveillance of foreign terrorists and to provide clarity and legal protection to our private sector partners who assist in that surveillance.

The proper course is now to conference the House bill with the Senate bill that was passed on Tuesday. There are significant differences between these two bills and a conference, in regular order, is the appropriate mechanism to resolve the differences between these two bills. I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won. [Emphasis added]

This is a shot across the bow to President Bush and a good sign that House Democrats, unlike their colleagues in the Senate, aren’t about to give up on the rule of law just because George W. Bush and Dick Cheney asked. Well done, Mr. Reyes.

Cross posted at the CREDO Blog.