February 26, 2008 | By Hugh D'Andrade

Republican Slips and Stalls

Statements from the White House Press Secretary aren't known for being informative, and they rarely give much away. But yesterday's statement from Dana Perino, aside from its myths and inaccuracies, also included this gem of an admission:

These lawsuits are abusive and, if they are allowed to proceed, would serve only to line the pockets of class-action trial lawyers.

Excuse us if we heard incorrectly, but did the Secretary just admit that the telecoms would lose if the cases against them were "allowed to proceed? In the past, the President and his advisors have claimed that the cases against the telecoms were "frivolous," but now it seems they have some merit after all.

This isn't the only slip in recent days. The LA Times reports that the White House may have backtracked on earlier claims that intelligence had been lost since the expiration of the Protect America Act:

On Friday evening, administration officials told reporters in a conference call that at least one telecommunications company was refusing to provide information that could help track newly suspected terrorists.

But two hours later, administration officials notified congressional officials that the company had agreed to cooperate, according to the Democratic congressional official. As a result, all of the nation's telecommunications companies are now providing all of the intelligence requested by the administration, even without the new law.

That's not all: Salon blogger Glenn Greenwald notes that Bush Administration officials seemed to be saying a recent letter that spying outside of FISA was illegal. He quotes this paragraph from a letter sent by Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey to Silvestre Reyes, Chairman of the House Intelligence Committee:

You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Investigation (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest.

Greenwald points out that proceeding in this fashion -- without a warrant and without FISA approval -- is exactly what the New York Times reported in late 2005 had become standard operating procedure in the months after September 11, and what has led to the cases against the telecoms:

So, you see, the Bush administration is in a really tough bind here, because they would really like to eavesdrop outside of FISA because they want to protect us all and keep us safe, but they just can't do that, because eavesdropping without complying with FISA's requirements is "illegal," and that's something they would never, ever do.

Administration officials can be forgiven for letting themselves get carried away -- they're working overtime to pressure the House leadership to cave in and simply rubberstamp the Senate's version of FISA "reform." So far, Speaker Pelosi hasn't taken the bait. She issued a handy FISA fact sheet late last week that answers some of the hyperbole:

Facts About FISA:
1. Under FISA, the Attorney General can approve surveillance in minutes. Surveillance can begin immediately and approval of the FISA Court can be obtained within three days.

2. Unlike last summer, there is no backlog of cases to slow down getting surveillance approvals from the FISA court. Michael McConnell, Director of National Intelligence, has stated: "We're caught up to all of it now." [2/7/08]

3. The FISA Court can approve surveillance orders quickly, and according to public reports, it has approved nearly every application for a warrant from the Department of Justice over the past 30 years.

4. Under FISA, telecommunications companies can be compelled by the FISA court to help with surveillance and have legal protection for compliance.

Facts About the Legislative Process:
1. The House passed the RESTORE Act in November 2007. Because of Senate Republican delay tactics, the Senate did not pass its bill until February 12.

2. Congressional Republicans blocked a second extension of the Protect America Act on February 13th after President Bush said he would veto it and reiterated his intention to veto any FISA bill that does not include immunity for telecommunications companies.

3. Now that both the House and Senate passed legislation, Committee leaders from both chambers are attempting to working on a bipartisan compromise that would pass both the House and Senate and get signed into law. Unfortunately, House and Senate Republicans and the Bush Administration have refused to come to the negotiating table.

Our Action Alert is still blinking red: Call or email your Representative now and tell them to hold the line on telecom immunity!

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