Congressional Republicans have new legislation they're pushing as a "compromise" on telecom immunity. One of their central talking points has been that the bill would allow a court to review whether the telcos acted legally when they cooperated with the NSA's warrantless wiretapping program. For instance, this morning's New York Times reported:
The Republicans have yielded somewhat on immunity for the companies: The current proposal from Mr. Bond would allow the FISA court to review the administration’s requests and determine by a “preponderance of the evidence” whether the requests were valid.
Glenn Greenwald aptly outlines the problems with this claim in his latest post on Uncharted Territory:
Lichtblau's article inaccurately describes the current GOP "compromise" bill with regard to telecom amnesty. It does not, as the article claims, "allow the FISA court to review the administration’s requests and determine by a 'preponderance of the evidence' whether the requests [from the Government to the telecoms to allow spying] were valid." Rather, the "compromise" bill simply says that if the telecoms can show that the Government requested that telecoms allow warrantless eavesdropping and represented that such warrantless spying was legal -- and we already know that that happened -- then the FISA court is required to immunize the telecoms.
The GOP "compromise" does not entail, in any way, any judicial consideration of whether the spying program in which the telecoms participated was legal, nor does it require consideration of whether the telecoms broke the law. The GOP "compromise" bill is nothing more than guaranteed, absolute immunity for the telecoms delivered in the form of a pre-scripted judicial process.
Senators Dodd and Feingold made the same point this morning in an open letter criticising the Republican proposal.