This is the concluding paragraph of my post (many words from now):

"what IS the reason for the FISA immunity provision? why is it important? If you look just at the effect it’s had so far, I’m sure they are smiling (and chortling - maybe a guffaw or two) in the White House and in McCain headquarters. It has certainly turned into a full-blown turn-on-each-other-and-maul-your-candidate-too feeding frenzy, one that’s draining enormous amounts of time, energy and enthusiasm from the effort to get Obama elected. — So that means there MUST be some really important and compelling reason to oppose the immunity provision. Can someone please tell me what that reason is?"

That indicates pretty well what the post is about, and I’m the first to admit that it’s long and pedantic and boring. So read only if you are interested, but I would genuinely welcome serious responses, other thoughts or insights.

Starting point: Everyone, their brother, and their cousin is either furious & disgusted or sad & resigned about Obama’s (apparent) willingness to vote for a FISA bill that contains immunity for the telecoms. Since I’m an Obama supporter, I decided to look into it to find out just how bad his (apparently planned) transgression was. And since I have 20+ years of experience working as a lawyer in civil and government liability I figured that for me at least it would be a quick matter to figure out, easily understood. WRONG!

You see, I don’t expect any candidate or leader to be perfect, but I do like to know where they fall along the continuum: from "Wow, this wasn’t a bad thing at all, I really respect this person" – to – "Okay, acceptable human flaw or cynical but realistic pragmatism" – to -- "That’s really sick-making but can be tolerated in light of the big picture" – to – "Ugh.  Okay, I'll bury my head in the sand, pay no more attention to the campaign, and on election day put a clothespin on my nose and go vote." -- to --  "Absolutely unacceptable and I cannot in good conscience support this person, no matter what the consequences."

I’ve done this a couple of times on issues involving various candidates (for Obama , the supposed pro-choice weakness and "present" votes, supposed idolization of Ronald Reagan, Samantha Powers, NAFTA-gate, Rev. Wright). To my surprise and pleasure, he’s consistently been in the first or second of those categories. But I figured that with SO many people so blisteringly angry, this was going to be one of the bad ones – maybe even the ‘hold-the-nose’ level.

What I wanted was for someone to complete this sentence for me: "The retroactive telecom immunity in the current FISA bill is a bad thing, so bad it MUST be opposed, because ______________." Just a simple statement, containing or referencing relevant facts, so that I could mull over what I thought about Obama’s (maybe) abandoning the fight against this immunity.

Here’s an example of such a statement, although it goes the other way because this is the only conclusion I’ve been able to reach based on what I’ve learned or been able to figure out so far (admittedly not a full scale project, I do have a day job... alas):

"The rectroactive telecom immunity in the current FISA bill is essentially meaningless and certainly NOT bad enough to fight over, because there is no evidence or any good reason to believe that the telecoms did anything that makes them potentially liable to their customers. They can only be liable if they violated the FISA statute that was in effect at the time, and I can find no FACTUAL allegations that they did anything that would constitute such a violation. Since either granting or denying them immunity would have little or no real-life impact, it should be an utter non-issue."

I may be wrong - I probably am -- that’s what I want you to tell me. But here’s how I arrived at that conclusion: My first (lazy) step was to simply post the question ("why is FISA immunity such a big deal?") on various threads on TPM. If so many of the knowledgeable and insightful folks on this board are THIS angry upset, then surely they know why they’re so angry. Right?

To my utter surprise, until recently most of what I received were >>>crickets<<< — or furious diatribes about people who would dare question Obama — or furious diatribes about people who would dare question people who question Obama — or statements that are so generic as to have no content (e.g., "because the telecoms broke the law") -- or scoldings because "that's already been discussed" but never stating any conclusion of that discussion. Finally, recently, I got some more serious responses that I greatly appreciated. So far, however, none of them see very persuasive legally.

By now I’m starting to wonder what all the angry people are saying in their letters and petitions to Obama, and calls and faxes to their Senators? Are you just saying "You. Must. Fight.This" ..... or are you giving them a reason why it’s important to fight it? If so, what are they saying that's going to convince these folks? Obama and most of the others are lawyers, too, so they'll be looking at the same things I do. So, if you like, consider this as a primer, one that can help you tell him and the world how wrong he is to take this (apparent) position.

One statement I received most often, and had seen written elsewhere, but that really doesn’t make sense legally is this: "We have to be able to sue the telecoms because they violated our our 4th amendment right to privacy." Legally, this is just a non-starter. Sorry.

No individual or a private company can violate any of your constitutional rights, because they have no duty to protect those rights. Only the government does. To get any sort of liability, against anyone, you have to have 3 things: a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury caused by that breach. The Constitution gives citizens rights vis a vis the government .. and only the government. (Look at the Bill of Rights. They are either worded "Congress shall make no law affecting ..." or set limits on something that only governments do: quarter soldiers, issue warrants, prosecute crimes, empanel juries, set bail, etc.).

Of course, telecoms (and other businesses) can be liable to their customers, but only if they breach either a common law duty or statutory duty that is owed directly to those customers. So what is the potential liability here? Common law doesn’t seem to be involved and even if it were, there wouldn't be any liability without without proof of actual, measurable damages.  As a rule, statutory duties are not owed directly to individuals but are "general," they're owed to the public, or the citizens as a whole, to the state. Thus, the government can impose civil or criminal penalties if a statute is violated, but even a proven violation doesn’t give any specific individual the right to sue the violator for damages. (Unless there is a common law cause of action, and then the statutory violation could be evidence of, say, negligence.)

As I understand it, the then-existing FISA statute made it possible for individuals affected by a statutory violation to sue telecoms by creating a "private right of action" And it greatly essentially eliminated the requirement that the plaintiff prove actual damage, because it imposes penalties payable to the plaintiff simply upon proof that the statue was violated in a way that affected them. Still, in order for the telecoms to actually be liable, the plaintiff HAS to prove that they violated one or more of the duties imposed on them by the statute.

So, did they? Russ Feingold says no. Honest, he really does. First, he states in any number of places, on his web page and elsewhere, that in allowing access to customer’s confidential information the telecoms are "already immune from lawsuits, as long as they get a court order or a certification from the attorney general that the wiretap follows all applicable statutes." This is absolutely true:  apparently this is the duty imposed on the telecoms by the statute and if they complied with the statute, then there was no breach of duty = no liability. Next, he states that information declassified by the Senate Intelligence Committee indicates that the telecom companies all received "written requests stating the activity was authorized by the President and determined to be lawful" before permitting access. (This is a bit harder to find but one place is http://feingold.senate.gov/issues_fisafacts.html.)

But I'm not saying that nothing illegal happened - it did.  As I understand it, the FISA statute provided that before the government could legally obtain otherwise confidential information from the telecoms, two and sometimes three things had to occur:

1) The government had to serve the telecom with either a court order (warrant) or a written request for access accompanied by a certification from the AG that the request is lawful;

2) The telecom had to make sure that the warrant or request had all the proper information and authorizations. If it did not, they were required to refuse access; if it did, they were required to permit access.

3) If the government had not gotten a warrant ahead of time but used an AG certification instead in #1, then it had to go to the FISA court within a certain number of days to get a warrant issued after the fact.

There appears to be no dispute that in many if not all cases, the government violated the statute because it did not carry out #3. Still, everything up until that point appears to have been legal, and the telecoms "participated" only at #2, which was before things went sour. So, the government’s obtaining the information was illegal, and, as Feingold and others charge, the telecoms did "participate in" what was ultimately an illegal program to obtain information. But that does not – without something more - mean that the telecoms violated the statute so as to make them potentially liable to their customers for the illegal intrusion.

If what I have described above is all that is required and if it is all that happened, then the telecoms simply don’t need any immunity. That means all this fight about whether or not to give them immunity is, in terms of real life impact, an empty and meaningless exercise. If Sen. Obama has decided not to waste his resources (time, energy, political capital) on an empty exercise but instead chooses to pay attention to his campaign for the presidency, I - frankly - commend him. Even if someone thinks that immunity should be opposed because it "looks bad"  whether or not it has any meaning, fine - condemn.  But, if it is really meaningless, I don’t think his failure to do oppose it really ranks as a mortal sin (those are the bad ones, right?) and it certainly wouldn’t warrant  revolt and repudiation or at the least great discouragement by thousands of his supporters. Agree?

So there must be something more. Surely if there is this much opposition, sometimes semi-hysterical opposition, to granting immunity then there HAS to be some realistic theory of liability that the immunity would allow them to escape.

Did they know the warrants or certifications were forged, for example? Does the statute impose some other duty on them that they didn't fulfill?  (Hey, maybe it required them to follow up and make sure #3 got done and, if it wasn’t, then to insist on a warrant before granting any further access.  I don't think it did, but it should have!)? Those would be easy enough to explain: Immunity bad "....... because the telecoms violated the statute by accepting forged certifications and therefor could not in "good faith" allow access to the information." and "...... because the telecoms violated the statute by not following up to see if the government ever got the after-the-fact warrant and by continuing to release information on an AG certificate thereafter." ( I’m just making up these facts and provisions, by the way .... I’ve spent about a week trying to come up with factual scenarios under which the telecoms could be liable to their customers for participating in this admittedly illegal program. Some of the hypotheses were even wilder!)

But there has to be something — some action, even if hypothetical or merely alleged, that would constitute a breach of duty on the part of the telecoms and make them liable to their customers. If there isn’t, then this whole liability/immunity issue doesn’t mean anything at all.

After being quite a pest about this and, I suppose, finally convincing some people that I really was asking a question, not making an argument that started out with a question, I did get some serious, thought-provoking responses, to which I would like to respond. (I’m not identifying anyone because some comments were made by more than one person, some I got elsewhere, some I’ve reworded a bit, and in any event, I haven’t gotten anyone’s permission to identify them.  But their comments were greatly appreciated and if you recognize yours, please feel free to take credit!!) --------- I should say that dijamo and readytoblowgasket gave me the most serious and thoughtful responses. (And I hope you won’t be insulted if I say that the two of you wouldn’t necessarily have been ones I’d have predicted.... it’s very nice to be surprised, sometimes.)

Here are the suggestions I received or have found for completing that sentence about why it’s so important to fight retroactive immunity - followed by my comments:

***"Retroactive immunity is a bad thing no matter what the circumstances and should always be opposed. It sends the message that someone can break the law and get away with it."

Not so. In fact, granting retroactive immunity is most often done to promote justice and fairness, to protect people who did not intend to break the law and did not know they were breaking the law when they performed a certain act. Unlike the criminal law, where ex post facto laws (reaching back, having retroactive effect) are not permitted (Bill of Rights), in civil law the "default" position for new statutes and new court interpretations is that the new law applies to all matters then pending or commenced in the future. So it would be possible for you to do something today that you believe is legal and that *is* legal – Then tomorrow a statute is enacted or a court interpretation "elaborated" that makes that act illegal — Day after tomorrow you could be sued by someone who was injured by that now-illegal act or charged with having committed the now-illegal act. ---- And since you did commit the act, you could potentially be found liable or subject to a penalty for doing something you never knew or dreamed was wrong. -------  Obviously, that that’s very unfair on occasion, so in appropriate cases statutes and even court rulings can and do give "retroactive immunity" by saying that the people do did the act before the law was passed or "clarified" shall not be liable or subject to penalty. It’s actually a very good thing most often.

***"It’s clear the GWB administration had no lawful authority to do this, because there is no question that the request was unlawful and the telecoms complied without proper authority."

Under the above set of facts – which are the only FACTS that I’ve been able to come up with, the initial request (#1) was lawful, the telecoms’ complaince (#2) was in response to proper authority, but the government’s last duty (#3) wasn’t carried out. Therefore, you’re correct: the Bush administration did not have lawful authority to possess the information because the statutory requirements for obtaining it were violated. But the telecoms did comply with the part of the statute that applied to them.

Yeah, I know, I know. This is why people hate lawyers. But there really is no getting around that basic rule of civil liability: the defendant has to have violated a duty owed to the plaintiff (and cause injury) before liability can be imposed. So what duty did the telecoms owe to their customers that they breached?

***"We are allowing them to get away with violating the privacy rights of their customers absent lawful authority and we the people have absolutely zero recourse."

See above answer as to the telecom’s having lawful authority for allowing access. And remember that telecoms are private corporations. Only the government has a duty to protect or ability to violate your constitutional rights. If the facts are as set out above, then the only recourse the law would ever able to permit would be recourse against the party that breached its duty: the government. And, as a general rule, governments are immune: sovereign immunity. They cannot be sued except by their own consent. (But see next paragraph.)

***"Rights were violated, and you can’t sue the government so you should be able to sue the telecoms."

Actually, you can sue the government. As I mentioned above, there is the overall protection of sovereign immunity and, in addition, duties that are imposed by statute or constitution are "general duties," owed to the public as a whole (or all citizens, or the state itself), not to specific individuals. Sovereigns, however, can permit themselves to be sued in certain situations, and they can create, by statute, private rights of action, permitting individuals to bring an action when there is a constitutional or statutory violation. 

The FISA statute, for example, created a private right of action allowing individuals to sue the telecoms (or otherwise we would never have been talking about immunity!). Did it create a private right of action against the government as well? I don’t know, but it is possible that the customers may have the ability to sue the government for a statutory violation.

In any event, to the extent these actions implicate the 4th amendment (very much so, I'd say), many years ago Congress enacted 42 USC 1983, which creates a private right of action for anyone whose constitutional rights are violated by a person acting "under color of law" (i.e., by a government official). It’s a very powerful tool and was absolutely critical to advances made during the civil rights movement. Like habeas corpus, it is frequently overused and trivialized (most prisoner litigation, etc.) but it remains an extremely important weapon against governmental excess – as does habeas corpus.

I continue to be puzzled why no one is looking at or talking about pursuing this remedy and simply suing the government directly. (Hmmm, Maybe they were distracted by all this talk of telecom immunity?? See my last comment below.) Granted you can’t win big money damages in a 1983 action if all you prove is a constitutional violation; that gets only nominal damages.  To recover more you have to prove actual injury. (Unlike the FISA statute, which give $$$ just for proving the violation.) BUT .... a whole series court rulings that the government violated the constitutional rights of telecom customers would not be without effect: serious, major effect. Trust me on that one.

***"The telecoms may be liable for giving assistance in a database collecting private customer information for an NSA database. Qwest refused to participate in the database program." (With cite to an article: http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm,23910_5719566,00.html)

Now .... this is precisely the sort of thing I’ve been looking for: concrete allegations of something that could lead to liability on the part of the telecoms, something that would therefore make immunity have some impact.  Apparently it's not precisely the same program as the wiretapping, but I gather the FISA statute applies to this as well.  There is a suggestion in the article that Qwest refused to provide the information at least in part because NSA wouldn’t give them an AG certification. That would be doing precisely what the statute required them to do: allow access if you’re given a court order or AG certification; deny it if they don’t give you one or the other.

Did the other telecoms act without receiving either a warrant or AG certification? Is there any reason to think that happened? Has anyone alleged that? What does this do to Feingold’s statement that the telecoms did get appropriate information?  Was he talking only about wiretapping.  Or maybe – do you suppose? – everyone up until Qwest got the AG certification but there were some, er, "changes" in the AG’s office that meant certifications were a bit harder to come by?  So there’s missing information, but it’s certainly a possibility.  But then, why is no one saying this.  It would be easy enough.  ."Retroactive telecom immunity is a bad thing because there is good reason to believe (or evidence to suggest) that one or more of them cooperated in giving the government access to information without being served with either a court order or AG certification." At the moment, however, all that we have - factually - is Feingold’s statement that the telecoms that provided access had been served with the appropriate documents and a suggestion that Qwest didn’t provide access or information when it wasn’t served with an AG certification. There is nothing to suggest irregularity (a/k/a breach of duty, a/k/a violation of statute) in either of those.

** "Given that Qwest found the (NSA) surveillance program unlawful, the telecoms that did comply with it should not be granted immunity."

Well, in a legal sense, Qwest can "find" anything; that’s for courts to do. But they did refuse to provide information. ----  If they refused because they weren’t given an AG certification, then that was just doing their statutory obligation. --- I thought I read somewhere, however, that Qwest had refused because it became aware that the government was routinely failing to get that after the fact warrant ( #3) and therefore took the position that it could not in "good faith" comply with what was, on its face, a lawful order.
          If so, a gutsy move, and a principled one. And in the end the good one, because the government backed down and did not charge them with violating the statute. (It works both ways, you know .... *refusing* when the demand is proper is a violation of the statute, just as much as granting access in the absence of a proper demand would be.)

For the argument that "Qwest refused so that means the others should have refused," however, that's true only if the reason Qwest refused was the absence of an AG certification and the other telecoms didn’t get one either. If Qwest refused because it was rightfully suspicious of the legality of what the government was doing, maybe the others "should" have in some ethical sense but they were not legally required to do so. It seems a quaint if not foolish idea after 7 years of GWB and Cheyney, but in the law there is always a presumption that the government is operating lawfully and for good purpose. You can rarely get in trouble if you assume that is true, and you can get in a LOT of trouble if you assume the other way and refuse to obey a government order or comply with a statute. So even if the other telecoms had the same reasons to be suspicious that Qwest did (and it’s not at all clear that was the case), the prudent course of action would still be for them to carry out their duty under the statute (scrutinize the order or demand to make sure it’s proper and, if so, permit access) and let it go at that. Repeating myself --- the telecoms and other private parties do not have a duty to protect our constitutional rights, and so they cannot be liable if there is such a violation.  In this scenario, Qwest would be taking a bit of a risk and, one could argue, being a hero. Thank God there are heroes (although, as MLK found, they sometimes wind up in jail for doing the right thing), but there is no DUTY to be a hero. (I suppose, come to think of it, that's why they are heroes -- going above and beyond duty.)

Bottom line:  tou can’t be liable to someone for not being a hero. Okay, if you are told, even with proper documentation, to do something truly egregious like "go exterminate those Jews" (or, arguably, "go waterbord this prisoner") and  you obey, you may be guilty of crimes against humanity but you're probably still not civilly liable to the injured party. In most cases, however, you are expected to obey all apparently lawful government orders and you are safe from liability (or penalty) if you do so.

*** If the court cases against the telecoms are allowed to proceed, we would learn more about how the govt broke the existing law, namely, how intrusive and extensive the surveillance was.

I’ve heard this a good bit, and Feingold keeps emphasizing it as well. But — again – you have to look at the facts that are going to be in issue. You can only get discovery of information that is "material and relevant" to the lawsuit. The facts at issue in determining whether the telecoms violated the statute appear to be very limited, based on what I’ve been able to find out. Was the demand from the government? Was the demand contained in a warrant?  If there was no warrant, was it accompanied by a certification from the Attorney General?  -------  Discovering the information that is relevant and material to those questions won’t get you anywhere near issues like how intrusive or extensive the surveillance was.

IF there were credible allegations that the telecoms violated the statute by giving access to more material than was authorized in the demand, then this argument might carry some weight. But if that is the reason immunity is so important, then why is no one saying it?  Easy enough to say: "Retroactive telecom immunity is a bad thing because there is good reason to believe (or evidence to suggest) that the telecoms gave access to information that went beyond the information authorized to be released by the warrant or described in the request accompanied by the AG certification. Giving access to that "extra" information , therefore, was a violation of the statute in that it was provided without any lawful authority."

By the way, if you want discovery rights to the really meaty stuff - information dealing directly with with privacy interests, the scope of the surveillance, and the use to which information has been put – then you need to sue the government. And, as noted above, you can.

*** "Obama should oppose immunity because he himself has stated that the law was "clearly" broken. Was he just speaking carelessly?."

The law was "clearly" broken - by the government. I believe they have acknowledged that they did go though with #3, getting or even applying for the after-the-fact warrant.  So the statement  you quote would be correct, but that still wouldn't make the telecoms liable, however.

If Obama ever said that it was clear *the telecoms* had violated the law (I don’t know if he did or not.) then either he was being careless and didn’t get all the information and think it through before speaking (I think that would fall in the "human failing" category of sins) — or he knows more than we do about the activity of the telecoms and knows there are some facts that would make them liable. Same thing goes for Feingold, by the way. Again, if that is the reason telecom immunity is such a big deal, it’s easy enough to say: ("Retroactive immunity is bad because there is information that I have seen but which cannot become public unless there is a lawsuit that suggests the telecoms violated the statute in a way I’m not at liberty to describe" - In other words, "take me on faith." Which, actually, I’d be willing to do, with both Obama or Feingold ... but neither one of them are saying that, that I’ve heard.)

**Even if retroactive telecom immunity isn’t so bad, Obama said he would vote against any bill that has immunity in it and I want a president who sticks to his word."

Well, if you want a president who takes the attitude that "I said that’s what I’m going to do and by gum I’m going to do it come hell or high water and even if I learn down the road that it’s a stupid thing to do and even if I find out that it’s not working, I’m going to keep on doing it because, by golly, I said I would" ..... then you must have been very happy for the last 7 ½ years.

For myself, I prefer a president who will mean what he says when he says it, who will carry through with what he says he will do unless there is good reason not to, but who is  brave and intelligent enough to change his position if he gets information that shows it’s a bad course of action or if something happens to cause priorities to get shuffled. (As I think I said in some post early on, if you promised to teach your daughter to play tennis on Thursday afternoon but a tornado is roaring down the street at that time, it really is okay - even a good thing - to break your promise and instead shove her in the car and get out of town.)

And, finally, there is the big one – the heart of the matter – possibly the most critical, persuasive "reason" of them all:

***"If the customers don't have a case against the telecoms, why is the gov't so intent on immunity?"

And that, I think, is something that's in the back of everyone’s mind. It might even be good enough, in and of itself, for some of those in Washington who’ve had to deal with this particular government for so long.  You could hardly blame them.

I have no idea – not on the White House grapevine. But, being a lawyer, I can hypothesize on almost anything (except, it appears, grounds for finding telecoms liable).  So here are a few:

(1) If, as some imply, it was the telecoms themselves that wrote and are insisting on the provision, then it’s a no-brainer. Deal with corporate or bank attorneys for any length of time and you’ll learn that they are absolutely, uniformly programmed: get them upset, hint that anything is the least irregular, even telling them about a problem that was discovered and resolved,  and they start squawking "Immunity - Immunity - I want immunity!" From what? "Anything and everything. Something is irregular, something was irregular so it could happen again; someone is angry, they might sue us , I don’t want to get sued – I. Want. Immunity."  And this is NOT an exaggeration (well, not much of one); there truly does not have to be a rational reason. Here, they wound up within shouting distance of something illegal - their names wound up in the paper - people were upset,  therefore they must have immunity. They may even know they don’t need it and there’s no good reason Congress should grant it ...... but I’ll guarantee they would ask for it anyway. You never know until you ask, and hey, it just *feels* so much better to be able to look at a piece of paper and "I’m immune. I’m immune. No one’s going to get me cause I’m immune." (Can you tell I don’t work for a bank or big corporation but run across their attorneys too often?)

(2) Maybe it’s the government’s attempt to be fair and just. Hey, don’t laugh - it’s always possible. I guess. They may know the telecoms did not violate the statute but because the government did and got them involved in an illegal mess, the telecoms might get sued and  then they would get all upset (see above). Since the illegality was all on the part of the government, maybe they thought it would be fair to keep the telecoms from being harassed for simply doing their duty. Okay, I’m not putting any money on this either but I had to mention it because this is the traditional reason for retroactive immunity.

(3) Karl Rove is sneaking back into the White House at night and whispering into Bush’s ear: "Look, you want to get people’s attention off the fact that we violated both the statute and the Constitution? You want to draw their attention away from the nasty little traps we’re sneaking in to the *other* part of this new FISA bill? Why don’t you throw them some red meat see if you can’t get a little food fight going on. You and I know the telecoms didn’t do anything they could be held liable for, BUT if we absolutely insist that they be given immunity, I bet you anything those liberal do-gooders will just go nuts! You know how they *hate* the big corporations, don’t trust anything we do, and are always sniffing around trying to find out what goes on behind closed doors over here.  If you act like you’re terrified the telecoms will be sued, then they’ll be like a pack of Bloodhounds: sniffing around, trying to figure out what they did wrong, figuring out how they can get a crack at us by suing them.   It’ll be fun. And if we’re really lucky ...... that Obama is pretty smart, so he may figure out it’s just a red herring and says he doesn’t really care. Actually, that would be great. Then you’d have some of them shooting at him for "caving in" or some such thing ... and others of them will start shooting at the ones who are shooting at Obama ... and they’d all be mad at Obama for ‘causing’ this problem. Wouldn't that be wonderful! And all the while, no one will be spending time thinking about how bad we were, or paying a lot of attention to the other things we want to get past them – oh, like intruding into their privacy some more, and getting rid of habeas corpus, maybe invading Iran, and maybe McCain can pick up some steam while they are occupied. Nope, they’ll be busy trying their hearts out to get at the telecoms so they can sue them — and, if they ever get to succeed, they’ll lose!! God, playing with the minds of these Democrats is so much fun!!!"

BTW, Rove IS capable of that. (Check back to his very first, baby effort at such play – involved a judge named Kennedy in Alabama. And he just got more ‘talented’ after that. Particularly effective but largely unnoticed were his efforts in early 2004 to make sure abortion or gay rights were going to be on the November ballots in certain swing states. That’s called "planning ahead.")

(4) GWB or some minion: "Damn. They caught us red-handed. Oh, well, we’ll have to try it a new way and I guess there has to be a new FISA bill. Hmmmmm — I wonder if folks will be so mad at what we did that they’d want to sue us. Oh, probably not - they couldn’t get much money and it’s a lot of work; only cranky prisoners and other ‘losers’ pay attention to section 1983 anymoore. But... wait ... folks do know they could get a lot of money from the telecoms if they could prove something.  Of course they couldn't but that won't stop them from suing and maybe even getting a nice settlement.  -- Oh, hell. If that happened, we'd have to deal with them jumping all over us, going 'woe is me - it's your fault,' and giving us grief when we want to get at more of their secret information.  --- Hey, I know! Let’s toss in some language that says we’re going to make the telecoms immune. It won’t mean anything, but it will make them happy, get them out of our hair. And, hey, if we have to ‘lose a battle’ along the way, we could agree to let that provision go, no harm to anyone, and we can remind the telecoms that we tried.(Weeks pass.)
"Well, would you look at that!!!???  Those folks are just going bonkers over that stupid immunity thing we put in to ‘make nice’ to the telecoms!  Wow - maybe there are advantages to a 28% approval rating, after all.  People are so suspicious of you that they assume anything you want is bad even when it doesn’t mean a damn thing.  Well, can’t waste an opportunity like this.  Let's see if Dick can get someone to get out some leaks to the press.  (Where's Scooter when you need him?)  They should just let it drop that the administration is going down to the wire on this provision, that we feel it’s our moral and ethical obligation (yeah, will that get them really suspicious!) to protect the telecoms from all those lawsuits they’ll be facing – all those ‘successful,’ and ‘lucrative’ lawsuits that are going to turn up so much ‘juicy information’ about the inner workings of this place. That should do it.   ---------  If we’re lucky, maybe they’ll start fighting amongst themselves, making people mad, getting people mad at Obama if he doesn’t fall for the joke, getting people mad if he does fall for it, getting other people mad at the people who are mad at Obama. Who knows, those crazy liberal bloggers might set up web sites and launch petition drives and all that sort of stuff . Wouldn’t that be great? It'll keep them out of our hair, take there attention away from the (cough! cough!) other goodies we slipped in the other part of the bill  and a few other projects we'd like to get done ...... and best of all keeps them from doing any work for Obama."

Okay, I’m not usually a conspiracy theorist (and I don’t know if you can create a conspiracy by stumbling... but if anyone can, it’s GWB).   Still, when no one can articulate a good reason for the telecoms or the government to seriously care about immunity, because there doesn’t seem to be any potential liability, then you start trying to make some kind of sense of it.

So ........   what IS the reason for the FISA immunity provision? why is it important? If you look just at the effect it’s had so far, I’m sure they are smiling (and chortling - maybe a guffaw or two) in the White House and in McCain headquarters. It has certainly turned into a full-blown turn-on-each-other-and-maul-your-candidate-too feeding frenzy, one that’s draining enormous amounts of time, energy and enthusiasm from the effort to get Obama elected. — So that means there MUST be some really important and compelling reason to oppose the immunity provision. Can someone please tell me what that reason is?