In it, but not of it. TPM DC

Did Holder Make a Telecom Immunity Promise to Senator Bond?

Mr. Bond told The Times that Mr. Holder also pledged in a private meeting Tuesday not to reopen the issue of immunity from civil lawsuits for telecommunications companies that cooperated with the National Security Agency after the Sept. 11 attacks - another potential obstacle to the nomination among Republican senators.

Holder has indeed promised that his Justice Department would continue to defend the Bush administration's pro-immunity stance in a pending class action court case that challenges the NSA wiretapping program.

But Holder's quote on the issue left some wiggle room: "Unless there are compelling reasons, I don't think we would reverse course" in defending the Bush approach, he told Sen. Orrin Hatch (R-UT). As the Electronic Frontier Foundation points out, the Obama DoJ can choose not to appeal if immunity for the telecom companies is ultimately found unconstitutional. A promise to Bond to not revisit the issue of immunity at all, then -- even looking forward -- would be a solidifying of the new administration's stance.

One assumes that Bond's meeting with Holder took place later on Tuesday, because here's what he told CQ earlier that day:

Regrettably, instead of a yes or no, [Holder] said he would not revoke [immunity] unless circumstances changed. I find it troubling. He hasn't really explained what he means by that, and if circumstances have already occurred, there's no change to be had. Ensuring that the [intelligence community] has the cooperation of third parties is essential to intelligence collection. If the lawsuits are not dismissed, we jeopardize future cooperation.

Okay, so did Holder promise Bond never to revisit the immunity issue? We're looking into it.

Late Update: Indeed, this looks like Sen. Bond creating another hard-and-fast promise where none existed. "Holder explained his position to Senator Bond just as he explained it publicly at his hearing," an aide to the nominee said via e-mail. Here's how Holder described his position during that hearing, under questioning by Sen. Jon Kyl (R-AZ):

KYL: OK. Now, the certification by General Mukasey was based on an investigation of the previous conduct of the ... telecommunication companies prior to the revisions in the law in order to determine whether they were entitled to receive retroactive immunity. In other words, the lawsuits had been filed based upon their earlier conduct.

The new law provides explicitly a protection for conduct prospectively. So, the question, obviously, that arises then is what conceivable compelling circumstances could you conceive of that would relate to this previous investigation that caused General Mukasey to issue the certification?

HOLDER: Senator, I'm not sure that I can come up with what those compelling circumstances might be. I guess, maybe I was being a little too lawyerly in trying to get myself some wiggle room. I can't imagine what set of circumstances there would be that would have us go back and undo those certifications. I can't imagine. I don't know.

KYL: And you are aware that the Department of Justice, of course, has taken a position in the litigation involving AT&T in support of the liability protections that have been invoked by AT&T?


KYL: And it would be quite unusual where constitutional issues are involved for the department just because of a change administration to take a different position.

HOLDER: Yes, it would certainly not happen as a result of a change in the administration. That would not be a compelling circumstance. And I -- if you...

KYL: I didn't mean to suggest that either.

HOLDER: No, no, no. I'm just saying that if you, you know, put me to the task there like, Mr. Holder, tell me what the compelling circumstance might be, I don't think I could answer that question.