Drop your FISA hopes for Obama, Josh Marshall

MSLBer Jsh Marshall, host of Talking Points Memo, links to this Congressional Quarterly article as hope that Obama will get the telco immunity he voted for in last year’s FISA bill. Fat chance, as the ACLU notes on page 2 of the story. Josh, you’re grasping at straws.

Meanwhile, the Foreign Intelligence Surveillance Court, whether simply making its best honest ruling by its lights or else trying to inject itself into civil suits, is expected to release a public ruling that warrantless snooping on Americans is OK.

Warrantless wiretap suit gets OK

U.S. District Judge Vaughn Walker has green-lighted an amended lawsuit by two lawyers who formerly represented a now-defunct Islamic group. This is also good news for the Electronic Frontier Foundation’s lawsuit on FISA immunity; Walker is handing that case, also.

Telco immunity front and center

U.S. District Judge Vaughn Walker starts his hearing on FISA telco immunity at noon Texas time today. Wired is liveblogging the hearing.

Here's among the latest BushCo statements:

The immunity legislation "represents the considered judgment of our nation's political branches that, in the unique historical circumstances following the 9/11 attacks, telecommunications companies should not bear the burden of defending against claims that those companies assisted the government in its efforts to detect and prevent further terrorist attacks."

Yeah, right.

Be doubly scared of NSA

Oh, and thanks again, Obama and other Democratic FISA 45 percenters

If James Bamford, the man who has written the books three books on the secret dealings of the National Security Agency, was caught off guard by last week’s news of spying on Americans overseas by the NSA, you should be scared indeed:

Wired’s Noah Shachtman: It sounds like there were lots of people in the NSA that were spying on Americans.

Bamford: Well, I assume that they were. I mean, I don't think I managed to find the only two in the whole U.S. government that were doing it. No, I think I found two that were outraged enough to speak publicly about it. And I did actually interview other people, too — but they wouldn't go on the record or anything.

Shorter takes from Bamford:
• NSA director Michael Hayden has no backbone against Cheney et al;
• Hayden has compartmentalized the NSA to an extreme;
• TSP is just an umbrella name for a whole range of spy programs.

Here’s more about Operation Highlander, the illegal NSA spying on Americans run out of Fort Gordon, Ga.

Bailout fallout — Boehner a titty baby, Pelosi a hypocritical idiot

After the now-dead bailout (roll call vote is here), we have now the red-hot spin battle.

So, you shouldn’t have been expecting more from Democrats in the first place. (That’s why I’ll be voting Green again this year, as in 2004.)

House Minority Leader John Boehner accused Speaker Nancy Pelosi of well-poisoning within the House when he’s really mad she couldn’t deliver enough Democratic votes to cover for the massive GOP opposition.

Here’s the “well-poisoning” speech by Pelosi.

I do think Boehner was pouting.

At the same time, I do think Pelosi’s comments were inappropriate, especially when used to start the speech, rather than in the middle, or near but not quite at the end.

Also, given that Dems have had control of both houses of Congress for more than 18 months now, and haven’t pushed a single piece of financial oversight legislation of any major nature, Pelosi might want to read Matthew 5 about eyeballs, specks of dust and wood logs.

Beyond that, where was THIS Nancy Pelosi when Dennis Kucinich was pushing impeachment? Or on the FISA amendment legislation?

She was being political with her silence, just like she was being political with her noisemaking today.

Are you shocked?

Also, given the events of the weekend, for her to believe that, even without that face-slap at the start of her speech, Boehner was going to deliver 80 Republicans indicates a pretty high level of either naivete or self-delusion.

Finally, a SECOND vote? Not a snowball's chance, in my opinion. Repubs won't budget. Dems in iffy districts won't change their votes without more GOP cover. In fact, Dem no votes might go up.

I'll have a more detailed wrap tonight; Monday is normally my busiest work day in the weekly newspaper world.

Mukasey officially demands telecom immunity — but not all is over

The too-late-to-shut-the-barn-door bit of silver lining is that he acknowledged the existence of TSP. That said, Judge Walker could do one of two things that would crap a turd in the Mukasey-Bush-Cheney-Addington punchbowl.

That would be to either:
• Pull the judicial equivalent of jury nullification and tell Mukasey where to get off;
• Issue a stay of Mukasey’s request, based on the EFF suit against the government itself rather than the telecoms, filed for exactly this reason.

Walker has no legal reason to resort to option 1. But, he has plenty of legal logic to choose option 2.

(Oh, and thanks once again for an AG like this, Chuck Schumer; with Democrats like you, who needs to vote Republican?)

We WILL see Shrub and Uncle Fester in court (I hope)

Worried that the government will find a way to trash its spying suit againt AT&T et al, the Electronic Frontier Foundation is suing Cheney and Bush themselves.

First, assuming a judge even lets this case sniff a courtroom’s air — by the time it gets there, Fester and the Preznit will be out of office and his lawyers will be paid entirely out of his (rather substantial) dime.

Besides Cheney personally, other notables on the EFF lawsuit include, but are not limited to, former Attorney General John Ashcroft, former Attorney General and White House Counsel Alberto Gonzales, Vice President Dick Cheney, and Cheney's chief of staff David Addington.

For whatever reason, Wired doesn’t list Bush as a defendant, but he is named, on para. 29, page 6 of the PDF (link below).

EFF’s idea is to monkeywrench the government’s ability to grant immunity to the telcos in the first place. (Are you listening, Barack Obama?) And it’s hoping it’s got enough whistleblower evidence for a court to grant standing.

PDF of the actual filing is at EFF's site.

Among the hugely relevant complaints is that the government is getting ex parte information funneled back to itself from AT&T, and that the government may well be spying on the plaintiffs as we speak.

The more than one dozen counts in the suit allege violation of the Fourth Amendment, First Amendment (free association as well as free speech), FISA, 50 U.S.C. § 1809, (specifics regs of electronic surveillance), 18 U.S.C. § 2511 (knowingly using material believed to be illegally intercepted), 18 U.S.C. § 2703 (secure content of stored electronic communication), 18 U.S.C. § 2703 and separation of powers (Congress and Executive usurping judicial functions).

Thanks for protecting our civil liberties, Obama — NOT

NOT! is right

Only a couple of months after Barack Obama, by that time the putative leader of the Democratic Party, caved in the Senate on the FISA amendment bill and voted to allow the possibility that telecom companies would be immunized from prosecution for spying on ordinary Americans, the National Security Agency is moving toward trying to make that a reality.

Justice Department special counsel Anthony Coppolino says the government intends to meeth the immunity bill's procedural hurdles by Sept. 19 and thus seek blanket immunity on behalf of the companies.

Now, U.S. District Judge Vaughn Walker, overseeing 36 commingled lawsuits in a San Francisco federal court, still may not grant that immunity request. In fact, Walker has set a Dec. 2 hearing in which he would allow the Electronic Frontier Foundation to challenge the immunity legislation B.O. helped pass July 9.

Per the Wired story, the EFF is challenging the constitutionality of Obama’s work on five grounds:

1. Congress violated the separation of powers by attempting to usurp judicial authority to decide the Fourth Amendment claims of millions of ordinary Americans who have been, and continue to be, subjected to dragnet surveillance for the past seven years.

2. Congress exceeded its constitutional authority by passing legislation that grants to the Executive the discretion to essentially dictate the outcome of specific, pending litigation.

3. The statute improperly requires dismissal of claims of illegal surveillance between September 11, 2001 and January 17, 2007 based not on a judicial finding about the facts of the surveillance or the legality or constitutionality of the surveillance, but instead merely based on a 'certification" from the attorney general that some unknown member of the Executive branch told the carriers that some undescribed surveillance is 'lawful.'

4. The legislation denies due process to the plaintiffs by granting to the Executive, rather than the courts, the essential decision making about their constitutional and statutory rights.

5. The legislation purports to grant the Executive a unilateral right to require that the court keep secret not only the evidence, but also its own decisions.

On paper, the EFF has got a strong claim. But not ironclad.

Point No. 1 may play well to judges, starting with Walker, who are prickly about judicial prerogatives and independence. Legally, in the narrow sense, a bit different.

Point No. 2 is simply a legal pleading.

Points No. 3 and 4 are the key, with Point 5 tagging along with Point No. 4 on due process issues.

But, since Obama is a constitutional law genius, he anticipated all of these concerns and duly weighed them before rejecting them, right?

So much a constitutional law genius that Passive Pelosi™ and the other FISA 45-percenters in the Democratic party followed right along.

You know you still have an option.

Vote Green.

Take ‘Obama the constitutional law scholar’ with a grain of salt

Why?

One word and one phrase.

The word? An acronym named “FISA.”

The phrase? “Faith-based programs.”

Obama was OK with the FISA amendment bill, and openly so, before opponents like Feingold and Dodd even had a serious chance to try to block it.

Specific to constitutional law, why did Obama think Big Telecom needed a “get out of jail free card”?

(Here’s a link to all my “Obama + FISA” posts.)

Faith-based initiatives?

First, Obama is on record as wanting to expand them.

Add to that what I am going to assume is a shell game, a deliberate one, and NOT naivete, over the idea that federal vs. private funds can be and will be “segregated” by faith-based groups. (Our segregation of funds to Israel has sure stopped it from building a wall segregating Palestinians, hasn’t it?)

Top it off with B.O. giving us little idea what programs will or will not cut mustard in his administration, like this one, and his record here is scary.


Specific to constitutional law, I’ve long said most current faith-based programs at least challenge constitutionality if not going well beyond it, and that’s without B.O. wanting to expand them. I don’t need a rhetorical question here.

(Here’s a link to all my “Obama + fait” posts.)

Finally, the University of Chicago doesn’t strike me as a hotbed of progressive constitutional law, and Cass Sunstein doesn’t strike me as being as progressive as he cracks himself up to be.

Dick Durbin is an effing hypocrite and liar about Obama

In his intro speech for Obama, Illinois Sen. Dick Durbin claimed that Obama has/would/will fight for American privacy rights.

BULLSHIT.

In the wake of his still-unexplained sellout on the FISA amendment vote, is nothing but hypocrisy and a lie. And Durbin knows it.

Passive Pelosi™ gets punked on FISA again

President Bush has asked that all review of the FISA renewal sellout Pelosi and other Congressional Dem 45 percenters helped pass be kept secret.

BushCo also asked that the Foreign Intelligence Surveillance Court only accept legal briefs from the Department of Justice. In other words, it’s trying to bar the door to the ACLU, EFF, etc. The ACLU asked earlier this month that the FISC ensure any proceedings related to the FISA amendments be “as transparent as possible.” (The ACLU is seeking a court ruling declaring the law unconstitutional in the Southern District of New York.)

Yep, Pelosi and The Gang that Couldn’t Legislate Straight decided to trust Shrub again!

Pelosi voted for FISA revisal after knowing THIS?

Members of House Speaker Nancy Pelosi’s staff have been in talks to start a new Church Commission-style investigation of the Bush Administration for yet new details of its illegal National Security Agency domestic spying.

The parameters for an investigation were outlined in a seven-page memo, written after the former member of the Church Committee met for discussions with the ACLU, the Center for Democracy and Technology, Common Cause and other watchdog groups. Key issues to investigate, those involved say, would include the National Security Agency's domestic surveillance activities; the Central Intelligence Agency's use of extraordinary rendition and torture against terrorist suspects; and the U.S. government's extensive use of military assets — including satellites, Pentagon intelligence agencies and U2 surveillance planes — for a vast spying apparatus that could be used against the American people.

Specifically, the ACLU and other groups want to know how the NSA's use of databases and data mining may have meshed with other domestic intelligence activities, such as the U.S. government's extensive use of no-fly lists and the Treasury Departmen’'s list of “specially designated global terrorists” to identify potential suspects. As of mid-July, says (Barry) Steinhardt (of the ACLU), the no-fly list includes more than 1 million records corresponding to more than 400,000 names. If those people really represent terrorist threats, he says, “our cities would be ablaze.” A deeper investigation into intelligence abuses should focus on how these lists feed on each other, Steinhardt says, as well as the government's “inexorable trend towards treating everyone as a suspect.”

Chickenshit Note 1: If anything goes forward, it won’t be until after the elections and a new adminstration. Now, Dems, unless they are complete clusterfucks, will expand their Senate control significantly, and should expand their House control at least moderately.

BUT… what if Schmuck Talk Express™ wins the White House? Where does that leave Passive Pelosi™?
Chickenshit Note No. 2: How long has the ACLU been sitting on this? What guarantees can it and the other groups involved offer that Pelosi, et al, will really do something after we get into 2009?

Skeptics’ Note No. 1: Will Democrats limit their investigation to the Bush II years, in spite of this:

A prime area of inquiry for a sweeping new investigation would be the Bush administration's alleged use of a top-secret database to guide its domestic surveillance. Dating back to the 1980s (emphasis added) and known to government insiders as “Main Core,” the database reportedly collects and stores -- without warrants or court orders — the names and detailed data of Americans considered to be threats to national security.

Supposedly, Main Core was behind the threat by AG John Ashcroft and FBI Director Robert Mueller to resign in 2004.

That said, how much did Clinton use it? Bush I? Reagan? Page 2 of the story makes clear that the backbone of Main Core goes back to the Reagan Administration.

More confirmation:

Norman Bailey, a private financial consultant with years of government intelligence experience dating from the George W. Bush administration back to the Reagan administration, (saide) the NSA has been using its vast powers with signals intelligence to track financial transactions around the world since the early 1980s.

And, how bad is Main Core? This bad:

An article in Radar magazine in May, citing three unnamed former government officials, reported that “8 million Americans are now listed in Main Core as potentially suspect” and, in the event of a national emergency, “could be subject to everything from heightened surveillance and tracking to direct questioning and even detention.”

Skeptics Note No. 1A: How long has the ACLU been sitting on THIS?

Skeptic’s Note No. 2: How much were the “four,” the leaders of both parties on Congressional intell committees, briefed about any of this? How much had they heard as rumors and how long ago?

Uhh, here’s your answer on that one — at least some Dems have been fairly in the know FOR 20 YEARS, as page 3 shows:

During the Iran-Contra congressional hearings in 1987, questions to Reagan aide Oliver North about the database were ruled out of order by the committee chairman, Democratic Sen. Daniel Inouye, because of the "highly sensitive and classified" nature of FEMA's domestic security operations.

Now, the answer, on paper at least, to Skeptics’ Note. No. 1 is that the New Church Commission would go back before Bush II.

But, that said, will it go after Members of Congress from either party?

Hey, c’mon, you know better than that. Besides, those Democrats like Passive Pelosi™ and Obama already gave themselves an out. The new FISA bill’s retroactive immunity.

Opponents of Bush's policies were further angered when Democratic leaders stripped from their competing FISA bill a provision that would have established a national commission to investigate post-9/11 surveillance programs.

Meanwhile, nobody in Congress, not even Russ Feingold, is talking. Complicity, perhaps? That’s what Salon suggests. The story also suggests that Obama is unlikely to want to start his adminstration off this way.

Pelosi voted for FISA revisal after knowing THIS?

Members of House Speaker Nancy Pelosi’s staff have been in talks to start a new Church Commission-style investigation of the Bush Administration for yet new details of its illegal National Security Agency domestic spying.

The parameters for an investigation were outlined in a seven-page memo, written after the former member of the Church Committee met for discussions with the ACLU, the Center for Democracy and Technology, Common Cause and other watchdog groups. Key issues to investigate, those involved say, would include the National Security Agency's domestic surveillance activities; the Central Intelligence Agency's use of extraordinary rendition and torture against terrorist suspects; and the U.S. government's extensive use of military assets — including satellites, Pentagon intelligence agencies and U2 surveillance planes — for a vast spying apparatus that could be used against the American people.

Specifically, the ACLU and other groups want to know how the NSA's use of databases and data mining may have meshed with other domestic intelligence activities, such as the U.S. government's extensive use of no-fly lists and the Treasury Departmen’'s list of “specially designated global terrorists” to identify potential suspects. As of mid-July, says (Barry) Steinhardt (of the ACLU), the no-fly list includes more than 1 million records corresponding to more than 400,000 names. If those people really represent terrorist threats, he says, “our cities would be ablaze.” A deeper investigation into intelligence abuses should focus on how these lists feed on each other, Steinhardt says, as well as the government's “inexorable trend towards treating everyone as a suspect.”

Chickenshit Note 1: If anything goes forward, it won’t be until after the elections and a new adminstration. Now, Dems, unless they are complete clusterfucks, will expand their Senate control significantly, and should expand their House control at least moderately.

BUT… what if Schmuck Talk Express™ wins the White House? Where does that leave Passive Pelosi™?
Chickenshit Note No. 2: How long has the ACLU been sitting on this? What guarantees can it and the other groups involved offer that Pelosi, et al, will really do something after we get into 2009?

Skeptics’ Note No. 1: Will Democrats limit their investigation to the Bush II years, in spite of this:

A prime area of inquiry for a sweeping new investigation would be the Bush administration's alleged use of a top-secret database to guide its domestic surveillance. Dating back to the 1980s (emphasis added) and known to government insiders as “Main Core,” the database reportedly collects and stores -- without warrants or court orders — the names and detailed data of Americans considered to be threats to national security.

Supposedly, Main Core was behind the threat by AG John Ashcroft and FBI Director Robert Mueller to resign in 2004.

That said, how much did Clinton use it? Bush I? Reagan? Page 2 of the story makes clear that the backbone of Main Core goes back to the Reagan Administration.

More confirmation:

Norman Bailey, a private financial consultant with years of government intelligence experience dating from the George W. Bush administration back to the Reagan administration, (saide) the NSA has been using its vast powers with signals intelligence to track financial transactions around the world since the early 1980s.

And, how bad is Main Core? This bad:

An article in Radar magazine in May, citing three unnamed former government officials, reported that “8 million Americans are now listed in Main Core as potentially suspect” and, in the event of a national emergency, “could be subject to everything from heightened surveillance and tracking to direct questioning and even detention.”

Skeptics Note No. 1A: How long has the ACLU been sitting on THIS?

Skeptic’s Note No. 2: How much were the “four,” the leaders of both parties on Congressional intell committees, briefed about any of this? How much had they heard as rumors and how long ago?

Uhh, here’s your answer on that one — at least some Dems have been fairly in the know FOR 20 YEARS, as page 3 shows:

During the Iran-Contra congressional hearings in 1987, questions to Reagan aide Oliver North about the database were ruled out of order by the committee chairman, Democratic Sen. Daniel Inouye, because of the "highly sensitive and classified" nature of FEMA's domestic security operations.

Now, the answer, on paper at least, to Skeptics’ Note. No. 1 is that the New Church Commission would go back before Bush II.

But, that said, will it go after Members of Congress from either party?

Hey, c’mon, you know better than that. Besides, those Democrats like Passive Pelosi™ and Obama already gave themselves an out. The new FISA bill’s retroactive immunity.

Opponents of Bush's policies were further angered when Democratic leaders stripped from their competing FISA bill a provision that would have established a national commission to investigate post-9/11 surveillance programs.

Meanwhile, nobody in Congress, not even Russ Feingold, is talking. Complicity, perhaps? That’s what Salon suggests. The story also suggests that Obama is unlikely to want to start his adminstration off this way.

Are ACLU, EFF protesting Pelosi at Netroots Nation?

Nancy Pelosi, the infamous Passive Pelosi™ herself, is at the formerly styled Yearly Kos, now known as Netroots Nation, taking place in Austin July 17-20 at the Austin Convention Center. Obama has been invited; no word if he will show up.

Question: will folks like the Electronic Frontier Foundation and ACLU be there to protest?

Even though the ACLU is filing a FISA lawsuit, I never heard anything in advance from the ACLU of Texas, if it was going to stand up for ACLU traditions and at least have a news conference, if not a protest.

If the ACLU of Texas gives me any info, I’ll let you know.

If you want to shame it for not protesting, give them an e-mail.

Court may have declared Bush a felon

So argues one of the attorneys for the Al-Haramain Islamic Foundation Inc., noting that on July 3, Judge Vaughn Walker ruled that President Bush lacks the authority to disregard FISA.

Even if that sticks, though, Shrub could pardon himself along with everybody else.

Back to the main article, though. Jon B. Eisenberg’s “burst of healthy paranoia” is certainly understandable, given the Kafkaesque use of the “state secrets privilege” argument by this administration.

Not so understandable, though, is the degree to which Eisenberg knuckled under. He was and is part of a seven-lawyer team, and one of the other counsels, Tom Nelson, was specifically nixed by Department of Justice attorneys from sitting in on some negotiations about how to handle statements related to a top-secret document the FBI accidentally gave to al-Haramain’s attorneys.

No, let me rephrase that.

Nelson was NOT nixed by the DOJ. He was nixed by Eisenberg knuckling under to the DOJ. Eisenberg also consented to having his hard drive physically destroyed by the DOJ, which Nelson refused — without further DOJ attempts to do so.

Don’t hold your EFF and ACLU breath over FISA suits

I certainly appreciate the plans of both the American Civil Liberties Union (as a member) and the Electronic Frontier Foundation to sue over the constitutionality of the FISA bill, but I don’t think it will fly.

The same old song and dance of the past will be repeated, in the following version.

The lawsuits will be dismissed when the relevant district judge accepts the Bush “get out of jail free” note and OKs it.

The two organizations, with the same whistleblowers as plaintiffs, will sue.

Eventually, as has happened with other lawsuits, such as some against the Patriot Act, courts will find that the plaintiffs don’t have standing because they can’t prove they were personally affected.

Remember, you heard it here first.

Russ Feingold is a dildohead

The very idea of “vote Obama to undo FISA damage” makes me want to look for a barf bag

“In particular, Barack Obama, should allow us to greatly change this mistake.

“Barack Obama believes in the Constitution. He’s a constitutional scholar. I believe that he will have a better chance to look at these powers that have been given to the executive branch, [even though] he'll be running the executive branch.”

If pseudoprogressive lying bullshit like that gets accepted, then the Democratic Party really should remove words like “liberal” and “progressive” from its vocabulary.

The chutzpah of Feingold, KNOWING that Obama just voted FOR the FISA bill, is crap.

If you, too, want to call him a dildohead or worse, here’s his webmail. Here’s what I said:

I call BULLSHIT on your “vote Obama to fix FISA” schtick. Why didn’t you say “vote Clinton”? She, at least, voted against the final bill.

And, if Obama is such a “constitutional scholar,” then why did he vote FOR it?

I guess you, like he, are Just.Another.Politician.

No thanks. I’ll be voting Green again this year.

Instead of a barf bag, maybe I could barf on pseudoliberal, Democratic-enabler blogs who will champion his idea.

So much for FISA filibusters, eh? Where was Feingold?

Contrary to GOP threats of filibustering, it’s been a long time since we’ve had a Senator actually, individually, filibuster a bill. Well, all his high talk aside, even Russ Feingold apparently decided he didn’t want to add a page to Senate history books.

”This president broke the law,” Feingold said.

Then, why didn’t you filibuster?

In an anticlimactic final vote, the FISA amendment debasement bill sailed through the Senate after Chris Dodd’s “strip the immunity” amendment to it failed to get even 35 votes. Arlen Specter’s proposal to have district courts address the legality issue before granting immunity got 37 votes, and Jeff Bingaman’s proposal to delay immunity for a year-long investigation (which nobody wants in a presidential election year) got 42 votes.

Couple the FISA cave with Bush’s refusal to approve Passive Pelosi™’s nomination to a new government civil liberties board, and the Irony alert and Hypocrisy alert confluence is huge.

Not approved?

Morton Halperin, a veteran and sometimes controversial civil liberties advocate who has a famous role in the history of modern debates over government wiretapping.

Background on Obama’s lack of cred on civil liberties

Some talking points from the WaPost story about his appearance in libertarian-state Montana. (That’s more accurate, in some ways, than Red state, IMO.)

If anything, Obama may be heading the other way … on some of the intrusive homeland security measures popular with the "security moms" who populate the East and Midwest swing suburbs. ... He recently embraced a compromise bill on warrantless wiretapping that would effectively offer legal immunity to telecommunications companies that helped spy on customers. In 2006, after expressing misgivings, he voted for the Patriot Act's reauthorization, saying it was a marked improvement over the original bill of 2001. Obama voted for an emergency spending bill that included creating the Real ID, even though he said he opposed the identification card as an unfunded mandate. Support for the Real ID is in line with law-and-order voters.

Doesn’t that Patriot Act comment sound JUST like his FISA comment? And, of course, the Patriot Act reauthorization was no such thing.

Yes, it was an improvement over the original, but in no sense a marked improvement.

As for Real ID, you’ll note that Obama didn’t oppose the idea itself, just the cost.

In other words, we shouldn’t be surprised by Obama on FISA. He has a history.

Obama FISA suck-up reader at TPM

Talking Points Memo reader and obvious Obamiac JP weighs in on the need to continue to rally around. Democrats’ Fearless Leader.

Before we all torpedo the best candidate we have had in 30+ years over this FISA thing, be aware of the two facts: (1) there is a long-established government contractor immunity doctrine in American law & what the telecoms did after 9-11 in obeying government demands for compliance is right in stride with that doctrine, and (2) in any event, the federal government is likely required to indemnify the telcos for any judgment or settlement they'd have to pay. Is this really the make-or-break litmus-test the netroots is clamoring for? No way. Is this just another example of liberals eating their own? You betcha.

Here’s what I e-mailed back to TPM:

Calling telcos “government contractors,” especially when the warrantless wiretapping started before 9/11, is a stretch at least.

And, once again, remind JP of Qwest. At least one telecom knew this was illegal.

Meanwhile, TPM also has an Obama FISA flip-flop timeline/quote-watch.