Monday, March 3, 2008

Hold Harmless

Kevin Drum explains why the telecom companies aren’t all in a lather to get Congress to pass the FISA bill with immunity for them cooperating with the Bush administration’s warrantless wiretapping.

A couple of days ago I got an email from commenter/blogger bmaz proposing an explanation for this. To be honest, I sort of blew him off at first without reading his argument carefully, which I now think was a mistake. There’s some guesswork in what he says, but he’s an attorney with considerable experience dealing with wiretapping cases and he suggests that the reason the telcos don’t care all that much about the lawsuits being pursued against them is because they almost certainly signed indemnification agreements with the feds back in 2001. Such agreements would force the federal government to pay any legal judgments awarded in suits against the telcos.

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Obviously some of this stuff is guesswork, though pretty well-founded guesswork, and bmaz suggests that the press ought to show some interest in the possible existence of indemnification agreements. I agree. If they exist, it would mean the telcos have never been exposed in any way, and immunity would have no effect on their willingness to cooperate with the government in the future. It would also explain why the Bush administration was able to keep the telcos on board so easily even after the Protect America Act expired three weeks ago. Indemnification might be a good subject for some enterprising national security journalist to start prying into.

Any lawyer worth his Maybach would have never opened talks with the government without signing an indemnity clause. To paraphrase a line Fred Thompson made famous, telecom companies — and their lawyers — don’t take a dump without an indemnity clause. So unless they were amazingly naive and trusting, the phone companies knew from the git-go that even if they were sued for going along with an illegal operation, they and their stockholders would not have to pay for the trouble.

Kevin’s right; someone ought to look into this.