An unstated relationship in my mind is that the scope of a legal opinion will track the scope of the ordered surveillance. So again, I can imagine a narrow surveillance effort being outside of FISA, well supported by a legal opinion. See Clinton’s warrantless invasion of Aldrich Ames’ house — or action that happened before FISA existed, Truong and Humphrey.

At any rate, I was nit picking the phrasing you used, and as I said, I don’t think the surveillance programs conform with the sort of situation I’m describing, ergo, I think the outcome in this case (crappy opinion by the administration) is exactly the same.

I agree that if the legal arguments are narrowly drawn, there might be a reason for concern. However, the Project Groundbreaker was not narrow and did not follow FISA. The attorneys from the telecoms would have called “bullshit” on any narrowly drawn legal effort. It will be broad and expansive to cover their butt in all situations. No attorney worth his salt would have risk their future or their company for a narrow version.

Secondly, I’m sure they have filed some follow-up legal arguments that use the AUMF vote. The problem is that they also have the legal arguments that are dated prior to 9/11/2001 and thus prior to AUMF. They may still try to hide these early opinions and only use the AUMF support but this will not work because the attorney from Qwest knows that the papers from February, 2001 are in their files. It will be leaked if they try this route.

I see the problem slightly differently, although I reach the same conclusion that the legal opinion sucks.

I can imagine legal opinions, narrowly drawn, that are outside of FISA and outside of obtaining a warrant, yet would still pass constitutional muster. And so, I wouldn’t take “outside of FISA” as representing a per se crappy conclusion.

My sense is that the opinions rely on the AUMF as authorizing widespread, programmatic surveillance of “communities of interest” that on the slimmest of connection, MIGHT be of foreign intelligence interest. This is more than being “outside of FISA.” It’s the widespread surveillance, with too little “cause” to believe the contents would represent foreign intelligence information. That’s why President Bush wants to keep the orders as a matter of state secret. They contain a snooping policy that would be offensive to a significant fraction of the public.

I don’t think there is any serious concern that a telecom won’t comply with a warrant signed by a judge; but yes, you’re right, the question of needing retroactive immunity in order to obtain cooperation in the future is basically saying that “the future” includes requests that a judge might reject (or might never see) — and that the government expects voluntary cooperation with those FBI/DoJ/NSA orders too.

That is, if the order comes from a government agent, it’s legal, period, end of discussion.

No. Both of those are House measures. But a H.Res. has effect ONLY in the House (i.e., the Senate will never take it up) and so an H.Res. can never become law.

The H.Res. is a “rule” that describes how the substantive bill, in this case H.R.3773, will be debated, amended and voted.

What you describe as the Senate version started as S.2488 (IIRC), but the language of S.2488 was imported, lock stock and barrel, into H.R.3773 and that (H.R.3773) was sent back to the House. Now the House is picking up that paper, and proposing to debate it with yet another substitute amendment, this one being House-crafted language.

There is no consistent way to track the contents of a bill by bill number. One always has to read the underlying material to figure out what’s going on.

telecoms HAVE immunity, if the president or his administration asked for listening ability in writing that satisfies their legal requirements and they are already immune

I want to be clear on this. The President did give the telecom companies a legal opinion that attempted to support the program. The problem is that this legal opinion is not worth the paper it was printed on because it was outside of the FISA Court and law. The good portion of the new bill that I support basically says that the court and the public would indeed view this provided legal opinion and see that it violates FISA that is the exclusive way for the operation to proceed. I’m sure that the telecom companies have filed away this “get out of jail card’ from the President and are anxious to show the court. President Bush is refusing to allow this to occur and uses the skirt of “national security” to hide his end run on our 4th amendment rights. The telecom companies went along with the President in order to gain additional government revenue on future programs like expansions of Ground Breaker. They went for the money rather than follow the law. Greed was their downfall. Now they need to pay.

I have no doubt that the telecoms are telling Bush that you need to protect us and are balking at possible future cooperation. But the real reason they are giving the administration grief is they want to produce these documents and Bush will not allow them. Once Congress shows some backbone on this, you will begin to see a flood of leaks from the telecoms on the guarantees given and the rationales provided. it will not be pretty and will bring down this house of cards.

That’s in a different version of H.R.3773.

Text of H.R.3773 has more than one version. You are looking at No.1 (Introduced in House)[H.R.3773.IH], and that version does not have retroactive immunity. No.5 on the list (Engrossed Amendment as Agreed to by Senate)[H.R.3773.EAS] has the retroactive immunity language, at Sec. 202.

`(2) FAILURE TO COMPLY- If a person fails to comply with an order issued under paragraph (1), the Attorney General may invoke the aid of the court established under section 103(a) to compel compliance with the order. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person may be found.

That would seem to imply that if the companies don’t cooperate with an order after it’s approved by a judge, then they’re in deep doodoo.