The smoking gun buried inside telecom immunity

I'm reading about the compromise FISA bill being debated (and soon voted on) in the Congress over at the New York Times and something in the article stands out. The fight over this bill has been over whether or not to grant immunity to the telecoms that allegedly cooperated with administration requests to place wiretaps on domestic calls without a warrant. Democrats, sadly, seem to have mostly caved in to the White House's wishes with this compromise, allowing intelligence agencies to place "emergency wiretaps" on international and domestic calls for up to a week without a warrant, if they thought it was important.

That's troubling in and of itself, but what caught my attention was this next bit:

The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determined that they received legitimate requests from the government directing their participation in the program of wiretapping without warrants.

So let me get this straight: in order to be granted immunity from prosecution, telecoms would be required to produce documentation proving that the government directly ordered them to help them with illegal wiretaps.

Not only does this imply that such orders were given, and that records of them exist, but it also appears to be a not-so indirect statement that yes, our government has been eavesdropping on its citizens in a manner that breaks the law.

We all pretty much knew this already, but this would appear to be definitive proof. Or at least, once the telcoms cough up the documentation, then there will be definitive proof.

So I can't figure out if this is just a really clever way of nailing the White House for it's flagrant law-breaking, or if it's a really clever way of getting everybody off the hook. My inner cynic is telling me that it's probably the latter--that the compromise bill being debated would both grant telecoms immunity and, by saying it's OK for intelligence agencies to wiretap without warrants for up to a week, also grant retroactive immunity to the government.

The proposal allows a district judge to examine what are believed to be dozens of written directives given by the Bush administration to the phone companies after the Sept. 11 attacks authorizing them to engage in wiretapping without warrants. If the court finds that such directives were in fact provided to the companies that are being sued, any lawsuits “shall be promptly dismissed,” the proposal says.

I hope I'm wrong. I hope that, as reprehensible as it is for the telecoms that complied with illegal orders be let off the hook, this process of proving official orders leads to prosecution of the administration officials responsible for giving them. If there's any rule of law left in this country, it absolutely should.

I won't be holding my breath, though.