For discussion purposes only in this comment thread, let's accept as true the assertions in the release. The Attorney General has the power to, on certification alone, direct warrantless surveillance. Also, court orders can be obtained in the form of approved warrants, and this would immunize the telecoms. The public needs specific allegations in writing under penalty of perjury. The current allegations are innuendo without any attestation standard attached. We need more specifics about what was supposedly "lost":

"We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act."

- What is the evidence showing there is a causal link between "not providing reroactive immunity" and ongoing telecom support of the NSA; how was it determined that this was a "direct result" unrelated to any other factors?

- What the information that was "lost" first obtained, then removed/destroyed; or was the information never obtained?

- If the information was "never obtained," how does the GOP know with any certainty what was or wasn't "lost"?

Reconsider the warrants:

"Because of this uncertainty, some partners have reduced cooperation.

- "Some partners" means what: Telecoms? How many, and what percentage; do independent reports from the "partners" support these assertions; what feedback is the HASC/SASC getting from the NSA program offices related to this assertions; are the DOJ, NSA, and DoJ IGs getting information from the program offices managing these contracts that support these conclusions, or is the data still not available?

- "Reduced cooperation" by from [a] an illegal level to [b] one that is within the law; before the NSA's illegal surveillance was disclosed, how many requests for assistance were the telecoms responding to that should have been issued in writing in the form of a warrant?

- How can DoJ-DoD-NSA claim that they do not have enough personnel to process warrants when open source information shows the DOJ-NSA-DoD Staff have been using official US government computers to work on non-official business using government computers?

- What is the relationship between "cooperation" and losing data?

- Are the partners claiming there is uncertainty, and this is reducing their cooperation?

- Why are the "partners" not willing to cooperate if they have warrants?

- Describe the nature of the "uncertainty": Is it litigation risk; if so, then describe how "uncertainty about immunity requests" as applied retroactively would have any relationship to "partners" cooperation going forward.

Please discuss the power of the AG to secure court orders directing the "partners" to provide the services:

"In particular, they have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets under existing directives issued pursuant to the Protect America Act"

- Have any of the "delays" been to DoJ-NSA-related errors in not properly handling the warrant requests; what other reasons have the "partners" given for not accepting the warrants; how were the DoJ-NSA-related errors reconciled and subsequently corrected in the form of a valid warrant?

- Why hasn't the DOJ AG certified in writing that a "foreign" target can be subjected to warrantless surveillance; are the "partners" not accepting the AG assertion that warrantless surveillance is required?

- Which directives issued under the existing FISA requirements would address these supposed "holes"; how many warrants were not honored by the "partners"?

- What kind of warrants were correctly processed under directives, procedures, and guidelines unrelated to Protect America Act, but under the lawful umbrella of what FISA current permits?

- Why are the "requests" not contained in a court approved warrant?

- What is stopping the President from doing what was done in re Youngstown in seizing the assets of the "partners" and ordering them to comply with the US government orders during wartime?

- What is the plan of the DOJ AG to prosecute the "parnters" for their alleged refusal to comply with lawful requests to provide national security related support during war time?

- If the delay or refusal is not prosecuted, what relationship does this have with retroactive immunity?

- Is there a reason the "partners" have not adequately included sufficient liability risk insurance within their funding profiles?

Really? You can refuse a legal government request within the scope of the law? Awesome! My taxes just dropped to zero. Gawd, this would be funny if there weren't millions of granite-stupid Americans who will swallow it all without a moment's reflection.

This is not an assertion, but speculation:

"This uncertainty may well continue to cause us to miss information that we otherwise would be collecting."

- If this is a "certain problem" why are you referring to it as speculation using "may"?

- Are there other reasons for the US missing this information?

- How was it determined that "uncertainty" was the primary driver behind "missing" information?

- What types of information is "missed" because of minimization procedures?

- If the information is terror-related, why isn't the AG relying on written certificadtions that there is no warrant required?

- Is it the President's position that he will direct the telecoms to destroy evidence related to alleged terror plots, which do not require a warrant to monitor only a DOJ AG certification?

Note on page 2 of the letter: they've used two inconsistent references to liability protection:

extending liability protection

Is not consistent with:

providing liability protection

- Why are there two different references to the same immunity?

- How can something be "extended" that does not yet exist; but the same paragraph uses a different word: "Providing"?

Page 3 mentions an 'example' of a gap. But this refers to 9-11 related events. There have been updates to FISA since then.

- What other examples exist?

- Why isn't the Congress being provided with post-9-11 gaps?

- Despite FISA updates, is it the President's position that there are still gaps?

- If there are gaps since 9-11, why hasn't the President agreed to separtely discuss immunity from the changes he says are needed in FISA?

- If there are gaps and terrorists are not getting surveilled, why isn't the DOJ AG making a certification that the activity is an emergency, and request a retroactive warrant; or certify that no warrant is required because the surveillance target is related to terrorism?

- Why is DoJ AG and NSA reluctant to use warrants and work with the FISA court?

To be honest, this administration scares me so much that I wouldn't put it past them to nuke New York or LA to get their way. (After Bush holds his breath for five minutes and rolls around on the floor kicking and screaming until he turns blue - like a three year old.) "SEE, WE TOLD YOU!" they will say.

Then, the fear card plays out and we get "Daddy" "protecting" us for another four years.

Oh how far my country has fallen when you can even THINK that, let alone say (type) it.

NO IMMUNITY! Sign the petition: http://www.pfaw.org/go/StopImmunity

This rogue government has been inflicted upon us for too long.

Clearly bullshit.
The law compels the TelCons to comply with any requests by the government to assist in warranted eavesdropping. THEY CANNOT REFUSE.

I have no doubt that the House will follow the Senate and grant immunity to the telecoms. Not that the House believes a lack of immunity will hurt the telecoms or reduce their support against terrorism, but that the members of the House, just as the members of the Senate, do not have the ethics to do any better.

The Democrats are protecting Bush just as much as the Republicans.

You don't have to be a blind conservative not to see it, just an ignorant one to deny it.

PFAW and Electronic Frontier Foundation made a video about this, just posted on Crooks and Liars.

http://www.crooksandliars.com/2008/02/22/stop-the-spying/

Please sign the petition an pass it on!

Page 5, para 2:

This mischaracterizes the nature of the state-level privacy suits against the telecoms:

"Exposing the private sector to the continued risk of billion-dollar class action suits for assisting in efforts to defend the country. . ."

No, the suits are not directed at punishing the telecoms for supporting national defense, but for their alleged violations of the law. It is incorrect to assert that the suits are related to telecoms support of national defense. The suits are about the illegal means the telecoms are alleged to have used to violate the privacy rights of US citizens.

The US government fails to discuss the scope of insurance liability protection that the telecoms currently have available that would fully cover the costs of all litigation related to the alleged illegal telecom conduct. It is not appropriate for the US government to second guess the informed decisions of corporate counsel who determined no liabilty protection was needed, despite these foreseeable risks. If there is inadequate liabilty insurance within the existing telecom financial structures and contract language, these are issues of legal malpractice which the corporate boards need to address with their General Counsel.

The foreseeable risk was the illegal surveillance could result in massive financial losses. The telecoms apparently chose to ignore this risk, did not create financial instruments to mitigate this risk, and/or did not create contract language which would fully immunize them. It appears the telecoms incorrectly believed that the scope of the illegal activity would not be discovered, would be shielded behind a state secrets claim, and would never be litigated. Youngstown reminds us that during war time, even a US President must comply with the law. No telecom can belive they have more privileges than the President, or are above the law, even during war time.

The answer was for the telecoms to secure warrants or the required DOJ AG certifications that warrants were not required. This allegedly did not occur, in alleged breach of the law. However, the telecoms appear to have acted recklessly, and it remains to be undestood to what extent, if any, the corporate boards of the telecoms breached their fiduciary duties, and to what extent this alleged criminal conduct breaches the loan covenants.

The letter is not compelling because it makes many assertions without any meaningful examples. Also, rather than make a coherent argument, the letter relies on assertions which do not support the premise. They assert "sub-points" as if they are evidence, when they are merely restatements of the original premise, without providing anything of substance, as would reasonably expected of a former Judge now assigned as DOJ AG. Based on the emails from the US Atty firings, it appears DOJ and NSA counsel did have inputs to this poorly argued letter.

Here is an example of a sweeping assertion, not supported by subsequent information provided in the letter:

"The House bill has several grave deficiencies."

One would expect the list following this assertion to include a discussion of specifics. The letter does not do this. For example, this is a circular argument:

"First, although numberous senior intelligence officials have testified regarding the importance of affording liabilty protection . . . .the House bill does not address the criticial issue of liabilty protection."

Stating something is "important" in no way explains why the bill is defective, only asserts -- without proof -- that the bill doesn't meet the interests of the telecoms. This does not address the legal issue: Whether Congress has judicial power to affect ongoing litigation by changing the outcome of pending litigation. It does not. The President, DOJ AG, and NSA fail to address the question of whether the proposed immunity bill would or wouldn't be struck down as unconstitutional.

Just because witnesses have asserted something, it doesn't mean "the solution" is within this bill; or that "this solution" cannot be included in a different debate/bill. The President fails to keep this option on the table.

This is an assertion, but does not provide specifics to justify supporting changes to the given bill [text added]:

"Second, the House bill contains certain [unspecified] provisions and serious [unspecified] technical flaws that would [on assertion alone] fatally undermine our ability to collect effectively the intelligence needed to protect the nation [without discussing the option to debate immunity separately than the updates to FISA]."

Without specifics, it's not reasonable to expect anyone to believe the DoJ AG or NSA director. their assertions are merely that: Assertions, without compelling examples, evidence, or justifications. That's not an argument, but a laundry list of mindless assertions on the basis of emotion, not reason.

The telecom General Counsel's failed to ask this question: "When the public finds out, and they do lawfully attempt to litigate this issue against us for alleged breach of the privacy statutes, are we adequately covered? That was a foreseeable question the GCs should have asked going forward when the first warrantless request appeared, and the telecoms knew or should have known the FISA court was not involved, as they should ahve been. The telecom GCs chose to pretend an informed citizenry would never discover their alleged illegal activity. They miscalculated. The Corporate Boards need to review whether the telecom General Counsels did or didn't engage in recklessness, negligence, or breached their fiducary duties to the stockholders and Boards of Directors.

Perhaps the lack of cooperation is because the FBI forgot to pay its telephone bill again.

Just wondering.

If they are already 'loosing' intelligence I suggest that it is NOT because the telcoms are not playing ball, but because the administration has forgotten how to use the FISA court, and the FISA court procedures in accordance with the law. Is there a line around the block to get FISA court approvals? Nope.

some partners have reduced cooperation.

Boo hoo. They opted not to be part of the corporatism/fascism of acting illegally at the behest of the government. Those darn kids.

It's all about trying to manipulate public opinion; the media needs to be kept on about telling the entire story and not just quoting Bushniks and Dem's; let's hope Reyes writes them back and pins them down.
The idea that the telecom's would hesitate to respond to a lawful warrant is ridiculous and Mukasey should be prosecuting, not whining about the way things are.

If the telecoms were spying all this time with the blessings of the WH and the NSA, then why all of a sudden are the telecoms concerned about having Congress' approval?

Forget the usual explanations we're hearing from the WH and the GOP concerning lawsuits. Really all Bush has to do is issue a signing statement that overrides what the House won't do. So why no signing statement on this one?

We're still not getting the full picture of why the WH and GOP are in full panic mode. What is facilitating this panic? My guess is that the WH and NSA have made further requests that the telecoms just won't be part of. 2008 elections perhaps? Something else? Maybe they just realize that the Bush Adm has overstepped its bounds all in the name of terrorism. Who says the telecoms haven't been monitoring what the NSA has been up to.

I believe we have reached the time that whistleblowers and leaked information needs to come forth to the blogosphere.

We have to look at this from another angle. Lets reverse the roles here. Imagine we are the telecoms and the US govt comes to us prior to 9-11 and says that because of the recents attacks on the USS Cole and our other embassies, we need your help. Then as Karl Rove says, "9-11 just happened to come our way," and everyone's all patriotic feeling, etc.

After a while, the telecoms start to feel duped like the rest of us. They cut off their wiretaps for non-payment (I still laugh about that) and all this FISA stuff is coming up and I'm thinking as Chairman of XYZ telecom that the Bush Adm has just gone too far for my liking and furthermore their requests are getting away from the original mission here which was supposed to be catching people like OBL. As Chairman of XYZ telecom, I'm also thinking that as I sit here and listen to Bush throw a hissy fit like a spoiled child about retoactive immunity, then maybe it's time to leak some information about this administration and all of their duplicitious deeds.

As Chairman of XYZ telecom, I'm also thinking that I'm not going to be responsible for affecting the outcome a presidential election or what other nefarious actions the govt has planned all in the name of covering their asses.

Maybe we in the blogosphere should appeal to the telecoms in a tactful manner. Maybe get them to come clean as far as the illegalities of the Bush Adm is concerned. The fact that they have had the telecoms spying on political opponents (Democrats, here in the US). I have always wondered if this is what Patrick Fitzgerald discovered in those missing emails.

Maybe with some fine tweaking, we could come up a solution here to appeal to the telecoms. I know, you're probably laughing, but as the other person posted above, I don't want to think about the alternative - martial law and suspension of Congress, or worse, some sort of terrorist attack that the Adm blames the Dems. You would then have people literally on witchhunts for non-Republicans.

"More like what crimes they haven't been able to compartmentalize so Bush and the cronies can escape unprosecuted January 20th, 2009."

My fondest hope is that BushCo will discover that, not unlike La Cosa Nostra, committing as many crimes as they have for as long as they have...well, let's just use a Scorsese analogy- it's hard to get each & every body buried deep enough.

And make it stay buried.

So, just which telecom executives would be liable for those charges if they were ever brought against them? It must be the top brass, or they would just do it on the sly and let the underlings resign. But there must be a direct threat to the liberty of some of the top managers, or this would not even be an issue.

So, if the telecoms do NOT get immunity, who actually gets to take the rap? The operatives who did the actual tech work to enable the domestic spying, or the executives who told them to comply with those illegal orders?

Like I said, this must threaten the top brass "Partners."

Boy, howdy, that word "partners" is packed with a lot of thinly veiled subterfuge. Maybe they could change it to "suckers." Read it again with that correction in mind, and it will give you a chuckle and a chill.

I'm just wondering why it took this long for House Democrats to grow some spine and stand up to the White House? Or is another cave-in like what we saw a year ago coming down the pike?

Greenwald sums it up nicely:

"[E]ven if telecoms were refusing to cooperate, the reason for their refusal was not because they don't have retroactive immunity, but rather, it's because there is alleged uncertainty over the legality of current surveillance requests, and uncertainty over the ongoing validity of the prospective immunity provided by the PAA, because the PAA expired.

Prompting Greenwald to ask, who's leading the charge to prosecute the telecom's alleged illegal activity:

" Since Mike Mukasey himself just said in this letter that spying outside of FISA is "illegal," and since it's indisputable that the Bush administration did just that for years, doesn't that compel him as Attorney General to commence a criminal investigation into this "illegal" conduct

Which takes us to the DoJ OPR investigation, partially looking at NSA-related activities, which the President blocked:

"Mr. Jarrett said the investigation was also covering 'related' legal memorandums prepared by the Office of Legal Counsel since 2002.''

- Is DoJ OPR reviewing DoJ AG's comments about his apparent decision to not enforce Geneva, FISA, or violations of US laws against illegal surveillance?
- To what extent are the telecoms indirectly linked with alleged war crimes committed against POWs; and to what extent were the telecoms using invalid, illegally obtained information gleaned from POW abuse to spy illegally on American citizens; and bypass the FISA court and warrant requirements?
- To what extent was the information -- unlawfully gathered -- subsequently used during abuse sessions against POWs, in violation of Geneva?
- How much illegally captured/unreliable information did the US government gather, and subsequently inappropriately use to "justify" to the telecoms bypassing the FISA court, and not securing the required warrants?
- When we read the telecoms are concerned that the current US government requests are not supportable, what does this say about the full scope of requests since 2001: What types of things has the US government been asking since 2001 that the telecoms should have known was not related to a bonafide waiver to the FISA requirements, and required a lawful warrant, which the US government did not obtain?

This is not an issue for Congress, but for the DOJ AG to take up against the telecoms in court, for failing to comply with lawful warrants, FISA, or exceptions to warrants using an AG certification.

DOJ AG should comprehend the telecom's empty threats in using "may", not "will" [text added] .

"The telecoms "have indicated they may well [not shall, but may] discontinue cooperation if the uncertainty persists." ( More )

When the DOJ AG shows he's serious about enforcing warrant requirements against the telecoms -- by forcing them to stop whining, and respond to legal obligations -- we might take the DoJ AG seriously.

Until then, DoJ AG and NSA director are whining to the wrong people: Not Congress, but the boards of directors at the telecoms. If the telecoms refuse to cooperate, DOJ AG could prosecute the boards for not cooperating. Yet, DoJ AG refuses to prosecte the boards of directors. There's only one reasonable conclusion: The telecoms are not lawfully required to comply with the requests because they are not within the FISA; and the DOJ AG will not certify that a warrant is not required because he appears to know that the exceptions are not permitted.

This is a mess the DOJ AG has created, not resolved, and would like to throw into the House. Time for the House to throw this mess back at the DOJ AG via an impeachment investigation of the DOJ AG.

The LA Times this morning published a report of a letter sent to Congress hours after this testimony, in which the claim that intelligence was lost was rescinded. In other words, they lied. They jumped up and down and screamed bloody murder just to try to exert pressure. These people are, frankly, evil.

-->They write that "most partners" are still cooperating, but they've expressed "deep misgivings."

That is the crucial line. I don't understand the argument: if the telecoms say they did nothing wrong, and the Bush Administration says they did nothing wrong, then what's the problem?

It will be interesting to see if the Dems in the House have the backbone to stand up against unlawful domestic surveillance by our government. I sure hope so!