07/15/2008 05:12 am ET | Updated May 25, 2011

New Adventures In FISA Posturing

Congress' wrangling over the coming FISA legislation has left critics of the administration's warrantless wiretapping operation to wonder if the telecoms that participated were going to skate by with Congressionally-giftwrapped immunity, and if the Inspector General's oversight would actually expose any wrongdoing. One of the saving graces of the current legislation has been an amendment introduced by Senator Jeff Bingaman (D-NM), which could pave a way for a compromise on immunity without necessarily stripping the oversight process of its teeth by allowing Congress to delay a decision on immunity until ninety days after the IG reports are submitted. Brian Beutler explains:

There are a couple ideas here. The first is that by making telecom immunity contingent upon the submission of the IG reports, Bingaman's basically offering a guarantee that the IG reviews will be complete, and (at least in some cases) reported with some measure of credibility. The comprehensive report might not be a white wash after all. And if it's extremely damning, the (new, more Democratic) Congress could-but probably wouldn't-act in the intervening 90 days to amend the law and strip it of its immunity provision. Likewise, if the IG report does turn out to be weak, Congress could press for more.

Beutler stipulates that there remain "ifs, built on top of ifs," but nevertheless suggests that the administration might nevertheless be "somewhat chastened" by the amendment.

As far as that goes, we have an answer. Spencer Ackerman is reporting that DNI Mike McConnell and Attorney General Mike Mukasey have sent a letter up to Harry Reid that states that the Bingaman amendment is "unacceptable as a matter of national security." The letter reads, in part:

Any amendment that would delay implementation of the liability protections in this matter is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President's other senior advisers, will recommend that the President veto any bill that includes such an amendment.

So, to translate: If telecoms get tried, people die. There are highwaymen who will offer you more justice than Michael Mukasey.