The Weak Case for Telecom Immunity
Senator Jay Rockefeller has an op-ed in today's Washington Post defending his committee's decision to include a provision in their new FISA bill granting retroactive immunity to the telecom companies who participated in the NSA's warrantless surveillance program. Glenn Greenwald and Marty Lederman have already weighed in on the op-ed, and their posts are well worth reading, but there are a few points I want to add to the discussion.
The primary argument that Rockefeller and other proponents of immunity make is that immunity is somehow necessary to ensure the future cooperation of the telecom industry. As Rockefeller puts it, "if we require them to face a mountain of lawsuits, we risk losing their support in the future." He warns that "private industry must remain an essential partner in law enforcement and national security."
But this is nonsense. First, it's not as if the telecom companies can refuse to comply with a court order, so there's zero risk of non-compliance in cases where the FISA court is involved. And in cases where only a government directive is required, the current law allows the executive branch to seek an immediate ex parte order from the FISA court if a company refuses to comply with the directive. So it's not as if the companies can just ignore valid government requests for information and assistance. And they won't.
Moreover, there are plenty of existing incentives to cooperate with the government. First, the companies get compensated for their assistance. Second, and more importantly, these companies are always competing with each other for lucrative government contracts. That alone provides plenty of incentive to stay in the good graces of the executive branch.
Beyond that, there is something completely ass-backwards about the logic of this argument. We're being told that the threat of lawsuits and liability will make the telecoms hesitant to cooperate with the government in the future. But the entire point of having civil liability provisions in the law in the first place is to make these companies think twice about complying with legally dubious requests. If that's a problem, then we shouldn't just be granting retroactive immunity, we should be repealing the civil liability provisions altogether. These civil liability provisions exist solely to disincentivize precisely the kind of conduct that occurred here. It is the threat of facing massive lawsuits that is supposed to keep the companies in line.
And finally, let me again raise the point I brought up the other day. Rockefeller worries that these companies will "decide that it would be too risky to comply with legally certified requests." But according to the report from Rockefeller's own committee, the telecoms did not in fact rely on "legally certified requests" in this case, at least for a 60 day period in 2004. At the time, the Justice Department had determined that the NSA program was illegal and refused to re-certify it. Rather than halting the program, the President sent the telecoms a facially-deficient certification, signed only by the White House Counsel, Alberto Gonzales. As Marty puts it, this is "manifestly inadequate" and "the absence of an AG signature should have put the telecoms on clear notice that something smelled to high heaven." As stated above, the civil liability provisions in the law exist precisely to discourage compliance with invalid requests for assistance, such as this.
I agree with Rockefeller that the primary culprits here are within the Bush administration, not at the telecoms. But as both Glenn and Marty point out, all attempts to sue the Bush administration have failed on procedural grounds, with the government invoking standing and state secrets doctrines to prevent courts from reaching the merits. And given that fact, it would be irresponsible and capricious to legislatively terminate the only lawsuits that have any hope of leading to judicial review of the legality of this program.
But more to the point, our laws are designed to put independent pressure on both the government and third parties to comply with the law. That's why we have civil liability provisions. We don't believe, as a matter of policy, that only the government should be held to account for illegal conduct. And we understand that it is often easier to punish and deter illegal conduct by going after those who facilitate it. Again, that's why the law is structured the way it is.
The telecoms are not victims in all of this, and there's no good reason for granting them this extraordinary relief.
The primary argument that Rockefeller and other proponents of immunity make is that immunity is somehow necessary to ensure the future cooperation of the telecom industry. As Rockefeller puts it, "if we require them to face a mountain of lawsuits, we risk losing their support in the future." He warns that "private industry must remain an essential partner in law enforcement and national security."
But this is nonsense. First, it's not as if the telecom companies can refuse to comply with a court order, so there's zero risk of non-compliance in cases where the FISA court is involved. And in cases where only a government directive is required, the current law allows the executive branch to seek an immediate ex parte order from the FISA court if a company refuses to comply with the directive. So it's not as if the companies can just ignore valid government requests for information and assistance. And they won't.
Moreover, there are plenty of existing incentives to cooperate with the government. First, the companies get compensated for their assistance. Second, and more importantly, these companies are always competing with each other for lucrative government contracts. That alone provides plenty of incentive to stay in the good graces of the executive branch.
Beyond that, there is something completely ass-backwards about the logic of this argument. We're being told that the threat of lawsuits and liability will make the telecoms hesitant to cooperate with the government in the future. But the entire point of having civil liability provisions in the law in the first place is to make these companies think twice about complying with legally dubious requests. If that's a problem, then we shouldn't just be granting retroactive immunity, we should be repealing the civil liability provisions altogether. These civil liability provisions exist solely to disincentivize precisely the kind of conduct that occurred here. It is the threat of facing massive lawsuits that is supposed to keep the companies in line.
And finally, let me again raise the point I brought up the other day. Rockefeller worries that these companies will "decide that it would be too risky to comply with legally certified requests." But according to the report from Rockefeller's own committee, the telecoms did not in fact rely on "legally certified requests" in this case, at least for a 60 day period in 2004. At the time, the Justice Department had determined that the NSA program was illegal and refused to re-certify it. Rather than halting the program, the President sent the telecoms a facially-deficient certification, signed only by the White House Counsel, Alberto Gonzales. As Marty puts it, this is "manifestly inadequate" and "the absence of an AG signature should have put the telecoms on clear notice that something smelled to high heaven." As stated above, the civil liability provisions in the law exist precisely to discourage compliance with invalid requests for assistance, such as this.
I agree with Rockefeller that the primary culprits here are within the Bush administration, not at the telecoms. But as both Glenn and Marty point out, all attempts to sue the Bush administration have failed on procedural grounds, with the government invoking standing and state secrets doctrines to prevent courts from reaching the merits. And given that fact, it would be irresponsible and capricious to legislatively terminate the only lawsuits that have any hope of leading to judicial review of the legality of this program.
But more to the point, our laws are designed to put independent pressure on both the government and third parties to comply with the law. That's why we have civil liability provisions. We don't believe, as a matter of policy, that only the government should be held to account for illegal conduct. And we understand that it is often easier to punish and deter illegal conduct by going after those who facilitate it. Again, that's why the law is structured the way it is.
The telecoms are not victims in all of this, and there's no good reason for granting them this extraordinary relief.
10 Comments:
Bravo, A.L. This should be the rebuttal published in the Post, if they are truly interested in balanced reporting.
Are you sending this in as a letter to the editor?
Please do. Don't sit on your share of rationality and brains--there aren't enough to go around as it is.
Beat to the punch.
Absolutely you should send this as an op-ed/letter to the editor to rebut the idiot Rockefeller.
You, Greenwald, Lederman should each submit rebutals in the hope that at least one of them gets published.
The real "nonsense," of course, is that there are plaintiff's lawyers who will argue with a straight face that somehow their clients have been damaged. If the immunity is not enacted, there's not a jury in America that will hold these companies liable.
Benjamin Civiletti, Attorney General under Jimmy Carter but now apparently a wingnut, co-authored a cogent piece on the subject in this morning's WSJ, strongly urging the immunity. The op-ed concludes:
"Prior to FISA's 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation's security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president's constitutional powers. Given this, it cannot be said that the companies acted in bad faith in relying on the government's assurances of legality.
"For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal. Given the threats we face in today's world, this would be a perilous policy."
This issue illustrates starkly why important matters of policy must not be left in the hands of rent-seeking trial lawyers.
neutral, as usual, you're mistaken. This litigation is being driven by public interest organizations like EFF, not by fee-seeking trial attorneys. It's not a typical class action.
Second, the damages being sought here are statutory damages, set by FISA and other statutes, not compensatory damages.
Third, if you think juries are going to be sympathetic to big telecom companies that handed over their information to the government, I think you're very much mistaken (which is one of the reasons the telecoms want statutory immunity).
And finally, the WSJ op-ed you cite was written by lawyers whose firms represent telecoms, and it just misstates the law. The pre-FISA cases cited are totally irrelevant because they have no bearing on what the president's authority is in the face of a statute. And as I've explained in numerous prior posts, the 2002 FISA Court of Review case is constantly misinterpreted and made to stand for something it clearly does not stand for.
One of the "lawyers whose firm represents telcoms" is also a former Carter Attorney General. (And if you want to stoop so low as to make this slimy argument, please give us a list of your firm's clients. Otherwise, stow that nonsense.)
I do, indeed, think juries are going to be sympathetic. They'll be presented with a defense that produces a letter from the president, in the aftermath of a great tragedy, soliciting their support in an effort to prevent any further such tragedies (which effort has thus far been successful). The court will be presented (at the motion stage) with a defense that says no court has ever said that what the defendants did was unlawful.
And then, should it ever get to a jury, they may well hear testimony from the likes of Sen. Jay Rockefeller and Congressman Jane Harmon stating that they knew of the program and did not believe that it was unlawful.
And as you practice more and more you'll realize how silly it is in matters of this kind to argue about whether the FISA Court of Review case is misinterpereted. Tell that to a jury. We'll see who wins.
neutral, for someone who doesn't seem to have any grasp of the actual facts of these cases, you're incredibly patronizing.
You don't seem to understand what facts will actually be before the judge and jury if this ever proceeds to that stage. The case will have less to do with the lawfulness of the program (which, by the way, was clearly under the reasoning of Hamdan) and more to do with the validy of the certification of legality received by the telecoms. Remember, it's their "good faith" that is at issue, not the program itself. And as I've pointed out, the necessary certification, for at least a 60 day period in 2004, was defective on its face because it lacked the signature of the AG, the DAG, or the AAG. If it gets to that point, the telecoms won't even bother to present that issue to a jury because it is so straigtforward. They'll just settle. That's why they want immunity so badly now.
I can't think of any conceivable situation where a jury would be faced with factual issues that would require (or permit) the kind of testimony and "evidence" you're suggesting.
And there is no way in hell that a toss-away piece of dicta from Sealed Case will have any bearing at all on how these cases turn out (much less before a jury).
As for Carter's AG, Civetelli, he works for Venable LLP which does lots of lobbying work for Verizon (among others). I don't know if that affected his willingness to sign on to this op-ed, but it at least should have been disclosed. Whatever the case, the op-ed is very poorly reasoned.
I am exquisitely familiar with the rules governing what will and will not be received in evidence before the jury, and I am well aware that the companies' good faith is the issue, which fact is highly favorable to the defense. I believe they win in a slam dunk, and for the reasons I have stated. As for the testimony I suggested could be elicited from Rockefeller and Harmon, it is unquestionably relevant (tends to show that responsible officials took the same view of the certification as did the defendants), although there are a number of other reasons why the testimony will likely not be taken.
If you think that a jury will conclude that the companies acted in bad faith based on the signature on one certification not being proper, you are in some sort of dream world. Believe me, they won't, and their eyes will glaze when the plaintiffs' lawyer makes the argument. Either that or they'll laugh out loud.
The dictum you are so quick to deride was, while dictum, the only sentence written on the subject by a federal court since the enactment of FISA. Again, you apparently think jurors are going to treat the matter as would a second-year law student. Jurors don't do that. You put those words up on a screen, you talk about good faith, the attacks of 9/11, "put yourselves in their place, etc.," and then you let some clown on the other side drone on about dicta. Then you pop the champagne.
I know where Civiletti works, and I also don't know if it affected his willingness to co-author this piece, but I grant him good faith. And so far as I know William Webster is not working anywhere.
neutral, I'm still trying to fathom under what conceivable circumstance a jury would be asked to interpret the meaning of In re Sealed Case? You're completely right that a layman might misread that bit of dictum and think it means something it doesn't (this, by the way, is why the Bush administration and its surrogates keep citing that line in op-eds), by why on earth would a jury be asked to interpret the meaning of that line?
As for the certification issue, I don't even see how it would get before a jury. The validity of the certification can be decided as a matter of law by the judge during summary judgment (assuming the case got that far). A jury is not going to be asked to determine whether that certification meets FISA's standards (and it's such a slam dunk that even if they were, they'd have no choice but to find it deficient). There's no way the telecoms would take that issue to a jury trial.
The reason the telecoms want immunity is because they're worried about their exposure here. The litigation costs by themselves are negligible for a case like this (especially for such large companies). If they were confident they'd prevail on the merits, they wouldn't be seeking immunity.
interesting argument, gentlemen. there are too many sides to this argument to resolve it in this forum, in my opinion. Everybody is just free to ventilate.
i have to say that, from a layman's perspective, granting amnesty before the activities of the telecoms and the government have seen daylight would be premature.
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