John Dean, Olberman, and several others suggest that Obama's stance on FISA may indicate he believes the law only precludes civil actions, but not criminal actions, against the telecoms. I'm not so sure, but, hey, I was neither a Con Law Prof at Harvard, nor an attorney for a President. My thoughts below the fold.
My reasoning is actually quite simple. It has to do with burdens of proof. Let's talk about the O.J. Simpson case, which provides a mirror image of the strategy Obama may be contemplating, and John Dean is explicitly talking about. In the Simpson case, OJ was found not guilty of murder. The burden of proof in that trial was guilty beyond a reasonable doubt. OJ was, however, found liable for wrongful death in a civil trial. The burden in that trial was preponderance of the evidence -a much lower standard. Thus, OJ was not guilty of a crime, but civilly liable for damages resulting from the same actions he was found "not guilty" of.
In the case of FISA, I think the telecoms will argue - perhaps with some success since they do have teams of really smart lawyers in house and available to them from outside firms - that because the FISA law precludes civil liability, it cannot be proven by a preponderance of the evidence that they are civilly liable. Therefore, if it cannot be proved by a preponderance of the evidence that they are liable, they certainly cannot be found guilty of a crime beyond a reasonable doubt for the same actions.
So, as I said, FISA and OJ are mirror images. One could be found liable but not guilty; the other can't be found guilty because they can't be found liable. Perhaps I'm wrong, but if Obama's plan is to pursue criminal charges against the telecoms, it's gonna be a fight, and the telecoms already have a strong argument on their side (and the argument I just outlined does not include they equally strong legislative intent argument - the legislature would not seek to immunize companies civilly but allow them to be prosecuted criminally because to do so would make the FISA law superfluous - but that can be cured if Obama or someone else sets forth on the legislative record that the legislature explicitly reserves the right to seek - and is not immunizing telecoms against - criminal charges.