Telecom Spies Shared 'Common Interest' With Bush & Co, But What Do They Share With Obama's DOJ?

BUZZFLASH NEWS ANALYSIS
by Meg White

Last Friday, the Justice Department made yet another last-minute ditch effort to protect lawbreakers of the Bush era. As stories such as these begin to pile up, I'm starting to wonder who is crafting the new(ish) administration's definition of American justice.

In a Freedom of Information Act (FOIA) lawsuit that's been going on for years now, the government was required last Friday to disclose documents regarding lobbying activities surrounding the reauthorization of the Foreign Intelligence Surveillance Act (FISA) last year, which ultimately resulted in immunity for telecommunications companies who spied on Americans at the request of the government. Instead of doing so, government lawyers filed for a temporary stay, ostensibly to allow the solicitor general a month to decide whether or not she will file an appeal in the case.

The hook in the story for Wired magazine is that the Obama Administration lawyers argued that the telecom companies should be treated as a government agency. But what they actually said is even more troubling than that bizarre suggestion. The request for a stay was justified with the following language (emphasis mine):

And the communications between the agencies and telecommunications companies regarding the immunity provisions of the proposed legislation have been regarded as intra-agency because the government and the companies have a common interest in the defense of the pending litigation and the communications regarding the immunity provisions concerned that common interest.

When you first read it, the word "intra-agency" appears to be the most interesting. But I posit that the phrase "common interest" is of more concern. In his ruling, U.S. District Court Judge Jeffery White clearly separates the telecom group from the feds (emphasis mine again):

"Here, the telecommunications companies communicated with the government to ensure that Congress would pass legislation to grant them immunity from legal liability for their participation in the surveillance," White wrote. "Those documents are not protected from disclosure because the companies communicated with the government agencies 'with their own… interests in mind,' rather than the agency's interests."

Whether or not the administration gets it, White is saying that private companies do not have the interest of the federal government in mind, something that anyone with a basic education in economics or civics could have told you. That's right; Ma Bell is not the benevolent facilitator of communication she once was. 

Another element government lawyers seem to be missing here is that, while the interests of large corporations may have been in "common" with the Bush Administration's surveillance priorities, that is not necessarily a tradition Obama's Justice Department would want to continue. Perhaps the department would instead want to embody the spirit present in Obama's FOIA memo "to usher in a new era of open government."

Apparently it's as-yet undecided whether or not this particular FOIA request is included in the new era. The Justice Department's last-minute request for an emergency stay while it considers an appeal over the next month was granted.

The original FOIA was filed by the Electronic Freedom Foundation (EFF), a nonprofit civil liberties group, in December 2007 and April 2008, a process expedited by their filing an accompanying lawsuit. The group argued against the recently-granted stay, insisting that the case is "time-sensitive because Congress is currently considering two pieces of legislation that would repeal retroactive immunity for the telecommunications companies that facilitated the government’s warrantless surveillance program."

Both pieces of legislation -- the JUSTICE (which stands for Judicious Use of Surveillance Tools in Counterterrorism Efforts) Act and the Retroactive Immunity Repeal Act -- are being considered in the Senate as a part of the debate over the PATRIOT Act, elements of which will expire at the end of this year. So, in engaging in this debate, what information is Congress missing?

According to several media reports about the FISA storyline, after having provided information to the Bush Administration via what was at the time a secret surveillance program, the major telecom companies were very worried about the backlash after the program was finally made public by The New York Times and then confirmed by Bush. According to reports at the time, these companies were threatening to withdraw their help to the administration if they didn't get immunity.

They didn't get it right away, but it appears that the telecom industry got the promise that they would get immunity when the legislation came back around for renewal in 2008. And they did.

A Newsweek article from 2007, when Congress was first considering the telecom/Bush Administration proposal, noted that the "nation's biggest telecommunications companies, working closely with the White House, have mounted a secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits against them for assisting the U.S. intelligence community’s warrantless surveillance programs." The piece went on to note the threat that "the telecom companies say [that] they may be forced to terminate their cooperation with the U.S. intelligence community."

Aside from the cowardice, this threat decimates the main argument for granting immunity in the first place: that such companies should not be punished for doing what the government told them to do. If they want to be protected for "just following orders," these companies can't just up and decide they're going to stop following orders when they don't get their way. This illustrates that there's an element of free will exercised by these companies, smashing the myth of the acquiescent company that just wants to keep America safe.

Such information has a direct bearing on the conversations surrounding the reauthorization of the PATRIOT Act, and if anything documenting such threats is in the information currently being withheld via the stay, the Justice Department isn't doing right by the American people.

While it's clear the release of information is not in the best interests of the previous administration or the telecom companies, it does seem to be in line with President Obama's professed aversion to lobbying and attraction to transparency. Using that logic, maybe it's Sen. Obama, not President Obama, who might prefer to keep the "secretive lobbying campaign" secret.

Perhaps his change of heart on FISA had less to do with what the Washington Post at the time called Obama's desire "to walk the fine political line between GOP accusations that he is weak on foreign policy -- Sen. John McCain (R-Ariz.) called passing the legislation a 'vital national security matter' -- and alienating his base." Maybe the threat that telecom companies might abandon the wiretapping program was enough to change Obama's mind? Maybe he doesn't want to expose the malleability of Congress in the face of intense lobbying pressure. After all, I'm sure Verizon was more a compelling reason to grant immunity than a universally disliked, lame duck president.

As Glenn Greenwald said at the time about the impending vote, which he called "an absurd and incomparably corrupt non sequitur:"

That's really the most extraordinary aspect of all of this, if one really thinks about it -- it isn't merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and more brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps -- extraordinary steps -- to protect Bush officials.

Greenwald's outrage there was spot-on. But where are we now, with Bush/Cheney ten months removed from the White House and a Democratic majority that has already spanned more than one congressional term? Is there another group, besides "Bush officials" being protected?

Even though Obama voted for a provision to strip out the immunity for the bad actors in telecom from the 2008 iteration of FISA, not enough of his colleagues -- especially the centrist ones whose support he's more recently been trying to get on healthcare -- decided to go along with him. Let's say Obama's Justice Department has evidence that such conservative Democrats were lobbied by telecom companies prior to voting for retroactive immunity. I'm sure there's some pressure there to keep such information -- should it exist -- quiet for as long as possible. At least until healthcare reform is pushed through. Or maybe until the major components of the PATRIOT Act are reaffirmed?

Maybe I'm just being cynical and seeing connections where there really aren't any. I hope so. But without such connections, it's hard to understand the last-minute moves made by the Justice Department Friday to keep the lid on this FOIA . Maybe it'll all be clear as a bell a month from now. In the meantime, I'll be watching the progress on the JUSTICE Act and the immunity repealing legislation in the Senate.

BUZZFLASH NEWS ANALYSIS

The image combining AT&T's logo with that of the NSA is a parody courtesy of Electronic Frontier Foundation.

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