The Electronic Frontier Foundation has won another significant legal battle, as a federal judge in California yesterday ordered the Bush administration (.pdf) to comply with EFF's FOIA demand and disclose documents revealing its "communications with telecommunications carriers and members of Congress" regarding efforts to amend FISA and provide amnesty to telecoms. Better still, the court imposed an extremely quick deadline for release of these documents -- December 10 -- so that "the public may participate in the debate over the pending legislation on an informed basis."
Needless to say, the Bush administration raised every argument it could to avoid having to disclose this information. These disclosures will reveal -- among other things -- which telecom lobbyists and other representatives were meeting with DNI Michael McConnell in order to secure telecom amnesty, as well as which members of Congress McConnell and other Bush officials privately lobbied. As an argument of last resort, the administration even proposed disclosing these documents on December 31 so that -- as EFF pointed out -- the information would be available only after Congress passed the new FISA bill. The court rejected every administration claim as to why it should not have to disclose these records.
It is vital that this information be publicly available. The administration is eager to have Congress bestow onto this industry an extraordinary gift, whereby the entire industry becomes retroactively immunized from the consequences of its past lawbreaking. The administration's primary spokesman on this issue is DNI McConnell, who continously invokes shrill national security warnings to justify this amnesty, though it is rarely mentioned that McConnell has more extensive ties to this industry than almost any other government official.
It should go without saying that Americans have the right to know which telecom companies have had doors opened for their lobbyists and executives at the highest levels of Bush's national security apparatus in order lobby Bush officials for this legislation (and which key Senators were privately targeted by McConnell). As the judge concluded, "the public interest will be served by expedited release of the requested records because it will further the FOIA's core purpose. . . ." (p. 10).
But all of this reasoning applies with equal force to those Senators who have been so instrumental in working on behalf of telecoms to keep amnesty in the FISA bill. As Ryan Singel of Wired first noted, the key amnesty proponent in the Senate, Intelligence Committee Chairman Jay Rockefeller, has been the beneficiary of an enormous increase in contributions from the telecom industry this year, immediately preceding his extreme efforts (in tandem with Dick Cheney) on behalf of that industry to secure amnesty.
Additionally, telecoms have engaged in a massive bipartisan lobbying campaign to target key Senators to pressure them to support telecom amnesty. For exactly the reasons the court cited in compelling disclosure by the Bush administration of this information, it would be completely unconscionable for the Senators who are working the hardest to gift this industry with amnesty to conceal from Americans the extent to which they have communicated with these companies' lobbyists.
This morning, I called several of the Senators who have thus far been most instrumental in helping the telecom industry keep amnesty in the FISA bill: Senators Rockefeller, Feinstein and Whitehouse. The latter two Senators voted against stripping amnesty out of the FISA bill in both the Intelligence Committee and the Judiciary Committee (although both of them seem now to be attempting to work on a "Specter compromise" whereby telecoms would still be granted amnesty but the federal government would take their place as defendants). By e-mail, I also contacted the office of Sen. Reid, whose actions over the next couple of weeks will be crucial, perhaps dispositive, in determining the outcome of the efforts to keep amnesty out of the Senate bill.
I asked each of them for their reaction to the court ruling and specifically:
(1) Does the Senator agree with the federal court that the Bush administration should release this information to the public so that it can be considered as part of the debate over telecom amnesty?; and
(2) Will the Senator him/herself do the same and disclose the same information -- i.e., will s/he disclose with which telecom lobbyists and executives s/he has communicated regarding the pending FISA legislation?
The reason this information is so vital is because it shines the real light on what is going on, both with this bill and more generally with how our political system functions. Led by Bush officials, amnesty proponents have been engaged in a non-stop, Cheney-style fear-mongering campaign, trying to scare Americans into believing that they will be slaughtered by Terrorists unless telecoms are immunized from lawsuits arising out of their past lawbreaking.
The reality, of course, is that these telecoms are able to exert so much influence because of their huge donations and their ability to hire the most well-connected lobbyists from both parties. It very well may be that these donations and lobbying efforts have absolutely nothing at all to do with these Senators' eagerness to work on behalf of telecom amnesty. Of course it's possible that these Senators on their own just developed a passionate, intense belief in the noble and just cause of bestowing this industry with immunity and that such a commitment is wholly independent from lobbying and donation activities.
But at the very least, if these Senators plan on giving this enormous and extremely rare gift to this industry, the public ought to know what dealings they have with this industry and their lobbyists -- just as the court compelled the Bush administration to disclose this information (EFF's summary of the court ruling is here). I'll post responses to these inquiries as I receive them.
UPDATE: From Sen. Feinstein's spokesman, Scott Gerber:
As for the district court ruling, the court has spoken.
Senator Feinstein or her staff has met with or spoken to organizations and individuals that have requested a meeting on this issue.
* Representatives from the Electronic Frontier Foundation and other plaintiffs;
* Defendants including Verizon and AT&T;
* Privacy and civil liberties groups; and
* Representatives from the Department of Justice and the Intelligence community.
She has also reached out to legal experts for their views on alternatives to immunity, including substitution.
This is an important issue, and Senator Feinstein is interested in the views of all sides of the debate.
That's quite a lot of meetings she had. It looks as though, at least thus far, she found the pro-amnesty arguments of Verizon, AT&T and "representatives from the Department of Justice and the Intelligence community" most persuasive.