Papers of Record Clash over Telecom Immunity

The Wall Street Journal's and the New York Times editorial boards are rumbling over the expanded wiretapping and telecom immunity bill that the Senate is re-revisiting Monday and Tuesday. The august body looks set to hand extensive spying power to the executive branch and grant amnesty to telecom companies that helped the government warrantlessly spy on Americans for four years.

The editorials come as senators debate on Monday possible alternatives to full retroactive telecom immunity: substituting the government as the defendant or moving the cases to a secret spying court, though neither attempt at a compromise is likely to pass. A final vote on the bill is expected Tuesday.

The Journal argues, quite falsely, that the left failed to get Congress to declare the government's secret wiretapping program illegal and thus filed lawsuits.

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor.

As Salon's Glenn Greenwald clearly explains, this last sentence is just false.

In short, the lead lawsuit against the telecoms, the EFF's suit was filed against AT&T less than six weeks after the Times outed the president's secret, warrantless spying on Americans. That program violated the plain language of the nation's surveillance laws, and once the program was put to a secret wiretapping court, it was quickly struck down as illegal – though the government claims that ruling is so sensitive it can't be shown to the public.

Moreover, under the Foreign Intelligence Surveillance Act, there is no such thing as 'cooperation.'

Instead, spooks find a suspect, apply for a court order, get the order and hand it to a phone company or email provider. That company complies, under penalty of law.

Here's how the Times's editorial board puts it:

Mr. Rockefeller [ed.note, an immunity backer] argues that companies might balk at future warrantless spying programs. Imagine that!

This whole nightmare was started by Mr. Bush’s decision to spy without warrants — not because they are hard to get, but because he decided he was above the law. Discouraging that would be a service to the nation.

This debate is not about whether the United States is going to spy on Al Qaeda, it is about whether it is going to destroy its democratic principles in doing so. Senators who care about that should vote against immunity.

But what about beyond immunity? What about the Senate being set to legalize some of the very wiretapping that the telecoms are being sued for?

Glenn Greenwald argues, like Daily Kos's Markos Zuniga Moulitsas before him, that there's no debate whether the spooks should be allowed to sit inside U.S. telecom and internet switches to snag foreign-to-foreign phone calls and emails.

There is absolutely no "debate" of any kind – nor has there ever been – over whether FISA should require warrants for the types of calls the WSJ describes here. Everyone, even including the most stalwart opponents of the bill, such as Sen. Russ Feingold and Rep. Rush Holt, agrees that FISA should be amended to exempt from its warrant requirements foreign-to-foreign calls routed through the U.S. There is no "debate" about that provision and the WSJ's claim that this is what is being debated – and that the "Left" believes that such eavesdropping is illegal – is just false.

The bill that the White House demanded and that Jay Rockefeller sponsored allows for warrantless eavsdropping not only on foreign-to-foreign calls, but also on international calls which American citizens make and receive while on U.S. soil. Put simply, it allows the President to spy on all of our international calls and emails with no oversight and no warrants of any kind. That is what the "debate" is about.

Respectfully, THREAT LEVEL would beg to differ.

We've long opposed letting the spooks install filters inside the nation's communication tubes. We aren't really alone. For instance, the ACLU opposes the House's RESTORE Act which tries to legislate this warrantless wiretapping distinction.

Moreover, some of the nation's foremost security, networking and privacy experts say permanent NSA wiretaps present clear and present security dangers.

What's the difference between a permanent NSA wiretap that only snags foreign-to-foreign calls and one that snags calls where an American is on one or both ends?

As little as a single line change in computer code that few would understand and even fewer have the right to see.

Our take? If the NSA has a particular suspect in mind and want to place taps on phone lines and internet pipes inside the United States, get a warrant.

That sounds radical indeed in an age where senators race to hand over spying powers to the executive branch, but that was the spying architecture that Congress itself built in 1978.