wow, this is really intriguing. during the presidential campaign my biggest disappointment with obama was when he caved on FISA, voting for a bill that gave retroactive immunity to telecom companies that assisted the bush administration in breaking the previous version of the FISA law. immunity is immunity, once it's given you generally can't take it back. i had thought that ship had sailed when president bush signed the FISA amendment bill last summer.
but if i understand the CQ article correctly, the ship hasn't quite left yet. because the judge in the telecom lawsuit hasn't ordered the telecom lawsuit dismissed yet. once obama takes office the new administration could try to withdraw the documents filed by attorney general mukasey that purported to show that either the executive branch had assured the telecoms that the surveillance was legal or that a particular telecom defendant was not involved in the surveillance program. under last summer's FISA amendment, those documents must be in the record in order for the judge to rule that the telecoms are immune.
even if the obama administration tries to withdraw the documents, the gambit might not work. there's a chance that the judge won't let the new administration withdraw documents from the record absent some some question about their authenticity. the obama administration wouldn't be withdrawing because it didn't think the documents were real, it would be doing it for purely strategic reasons. the judge already has the documents in his file, he might not tolerate taking them out just because the AG's office has had a change of heart.
it's still worth a try. when obama announced he would sign the FISA bill last june, he claimed that he would vote in favor even though he remained opposed to the immunity provisions and promised to "work in the senate to remove this provision" from the bill. obviously that effort didn't work. but if obama was sincere about his opposition to telecom immunity back then, he should do everything in his power once he takes office to make sure it never goes into effect.
(via laura rozen)
