Another piece in the FISA/Immunity puzzle

bmaz on Emptywheel has a fascinating discussion of Telecom immunity, why the White House wants it, and wy so many Democrats are siding with them (emphasis added):

First off, let's be honest; you don't need immunity for legal and proper conduct.

[…]

So, what if the telcos engaged in behavior outside of said "safe harbor" statutory provisions that turned out to be illegal behavior, but did so in response to to heated demands from the Bush Administration, and with assurances by the Administration that there was a legal basis and dire necessity; shouldn't they be entitled to immunity from massive civil liability damages for that conduct? No; that is where the indemnification portion of the argument kicks in. Indemnification is the act of supplying indemnity in a contract:

An indemnity contract arises when one individual takes on the obligation to pay for any loss or damage that has been or might be incurred by another individual. The right to indemnity and the duty to indemnify ordinarily stem from a contractual agreement, which generally protects against liability, loss, or damage.

It is my contention that the telcos have just such indemnification agreements with the Administration/government, that we do not know about because they are classified and hidden, that so protect them for any liability and losses resulting from the litigation they are faced with; thus they do not need immunity to protect them from potential liability verdicts, they are already covered.

[…]

Simply put, telco legal departments are huge, experienced, and cutthroat competent. They did not fall off the turnip truck last night, nor any other night; and they have been dealing with wiretapping issues for law enforcement and national security concerns since the telephone came into use. As someone that has had dealings with such entities regarding bad/illegal wiretaps, I can attest that they always protect themselves vis a vis the governmental entity they are working for and are not shy about the use of indemnity provisions.

[…]

the President has the authority under 50 USC 1431 et seq. to authorize exactly the type of immunity agreements that are described herein, and, furthermore, to promulgate specific rules (including secrecy and classification, see 50 USC 1433) for their implementation. Now, it should be noted that one of the provisions of 50 USC 1431 is notification of Congress, specifically the respective Armed Services Committees, if the amount in question exceeds 25 million dollars. It will be interesting to see if this was, in fact, done or if the Administration disingenuously took the position that there was not yet an amount in controversy because there was not yet any known or set amount of indemnified liability (which is my bet under both a reading of 1431 and 1432(f)) and has kept this under their belt with the exception of limited disclosure to the Gang of Four/Gang of Eight as discussed here. In either case, this is potentially an explanation for why even the Democratic Congressional leadership has been compliant in ramming through passage of immunity; they don't want the public to find out that they signed off on massive liability to be paid out of taxpayer's pockets.

I'd say that's a very illuminating theory.

If you check the list of the 19 Democratic senators who voted for immunity, seven of them are on the Senate Armed Services Committee:

• Bayh (D-IN)
• McCaskill (D-MO)
• Nelson (D-FL)
• Nelson (D-NE)
• Pryor (D-AR)
• Webb (D-VA)

Sen. Clinton's on the committee as well - she did not vote.

(Lieberman's also on that committee, and he [of course] voted for immunity, but then - I don't consider him a Democrat, so he's not part of the count of 19.)

It might just be that the Telcos are protected from liability by government indemnification. Retroactive Immunity would then have nothing to do with shielding the Telcos - it would be aimed at getting the government out of their obligation to indemnify them.

Very Interesting.

----

Late Edit:
bmaz recommends an article by Professor Anthony J. Sebok of the Cardozo School of Law that questions whether the government could truly get out of writing a check - since quashing planitiff's civil suit could be construed as a "taking," and therefore subject to compensation.