The ACLU watched in horror and impotence this summer as the Protect America Act vastly expanded the NSA's warrantless surveillance authority. With House Democrats pushing a PAA fix that still
gives civil libertarians shpilkis
, the ACLU is determined not to watch history repeat itself, especially as the Senate prepares a companion bill that worries the organization even more. So the ACLU is taking an aggressive approach: passing on what it freely concedes are rumors concerning what's in the bill in order to pressure Senators against violating civil-libertarian red-lines. What follows is an example.
Early this morning, ACLU spokeswoman Liz Rose heard from Senate sources that an unreleased draft of the bill contains provisions granting amnesty to telecommunications companies that turned over communications of subscribers to the NSA without warrants between 2001 and 2007. The Bush administration badly wants retroactive immunity for telecoms to become law, and was frustrated when this matter of "basic fairness" (in the words of Assistant Attorney General Ken Wainstein to reporters yesterday) wasn't part of either the PAA or the House Democratic RESTORE Act. Rose feared that the Senate Democrats were preparing to cave: after all, even civil-libertarian bete noire Steny Hoyer (D-MD) conditioned retroactive immunity on thorough administration disclosure over what the telecoms had done to require it.
So she sent out an email to a list of concerned bloggers warning them of what she heard. She gave permission to one of them, Christy Hardin Smith of Fire Dog Lake, to publish a version of her email. Hardin Smith wrote a post
earlier today quoting Rose's email as follows:
â¦the Senate bill (Committee draft) does contain immunity/amnesty for the telecom companiesâ¦Including retroactive immunity for anything theyâve done wrong in cooperating in illegal domestic spying for the past six years.
The FDL post urged readers to contact their Senators, and provided office phone numbers for members of the intelligence committee, which is drafting the bill.
I contacted Rose to ask her what she had heard. In full candor, she said, "We have not actually seen the bill. We're completely running on rumor." When I asked her why she had passed on a rumor, she replied just as candidly: "We're lobbying against any compromise involving telecom immunity and this is part of that effort. I am a paid flack for the ACLU." She had noticed that the issue of potential retroactive legal immunity for telecoms resonated with liberal bloggers, and so once she had a piece of information, she wanted to give the activist wing of the blogosphere something that it would seize on in order to derail the provision. In the summer, Rose reminded me, the PAA passed with a "short lead time," resulting in a lot of civil-libertarian recrimination afterward. If the price of pressuring the Senate is to pass on a few rumors, the calculation goes, it's a small one to pay.
A message left with staffers for Sen. Jay Rockefeller (D-WV), chairman of the intelligence committee, inquiring about the rumored immunity provision, hasn't been returned.
Update: Telecom immunity is "absolutely under discussion," according to Rockefeller spokeswoman Wendy Morigi, but "no decisions have been made." What's more, there isn't any "draft" of the bill yet. "Senator Rockefeller has said we certainly should be looking at telecom immunity, but no decision has been made," Morigi says. "There are lot of discussions pro and con, and he's looking at it seriously." Mark-up of the bill is expected for October 18.