The Pre-Emptive Cave on Immunity

by emptywheel

Glenn Greenwald catches the Democrats preparing to cave to Administration demands for retroactive immunity for the telecoms.

Mr. McConnell argued on Tuesday that the expanded surveillance powers granted under the temporary measure should be made permanent.

He also pushed for a provision that would grant legal immunity to the telecommunications companies that secretly cooperated with the N.S.A. on the warrantless program. Those companies, now facing lawsuits, have never been officially identified.

Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies. [my emphasis]

But Glenn is just now catching onto something that bmaz has been harping on for some time. So long as the Attorney General approved the program, the telecoms would have indemnity.

With regard to FISA immunity, JAO in comments makes the important point that FISA, from its inception, already provided that telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. Presumably, that means that with regard to what they did over the last six years, they had no such certification for at least some of Bush's warrantless activities which they enabled.

They may have lacked this certification because Ashcroft refused to provide it, and/or because Ashcroft was kept in the dark about some of what they were doing, and/or because they are concerned about the period of time when (as we now know, as a result of James Comey's testimony) the DOJ refused to certify the legality of the surveillance activities (and threatened to resign en masse if it continued), and Bush ordered it to continue anyway. If we lived in a society with either an open government or a Congress that understood its oversight responsibilities, we would know why the telecoms lacked this certificate and thus are in need of retroactive liability. Since we don't, we're left to guess.

I think Glenn's speculation--that there is no AG authorization--is, for the most part, incorrect. Here's bmaz (and see also this comment):

I still maintain that as long as there is a warrant valid on it's face or a properly certified AG letter that appears valid on it's face, the telcos either have no liability or, alternatively, are entitled to indemnification by the government for any resultant liability and any costs and expenses incurred by the telcos in defending themselves. There is massive liability here, but I just don't believe the telcos ultimately bear that liability. The attempts ats immunity are all about shielding the Bush Administration. Telco immunity is just another shell game fraud being sold like snake oil to the public so that BushCo continues to avoid accountability.

Rather, bmaz is persuasive that there is not direct liability on part of the telecoms (except as it relates to the spying that occurred in the 24 hours when Bush authorized it without DOJ, and therefore AG, approval). But there is a great deal of liability on the part of the government. If the AT&T lawsuit goes forward and a court finds AT&T did improperly share customer call data with the government, then Uncle Sam will end up picking up the tab, not the telecoms.

Which might explain why the Democrats are willing to cave on this. If the federal government is in the hole for billions in settlement costs (which is what we're talking), I can see Democrats seeing the wisdom of giving the telecoms immunity. Not that I agree with it, mind you. But no one is about to elect me to Congress. Maybe we can get Cheney to pay back Uncle Sam for the billions in settlement costs, but I doubt that's going to happen.

At the very least, we need to demand that we don't give the telecoms immunity until after the lawsuits against the telecoms are resolved. As Glenn notes, those lawsuits are one of the only ways we'll ever get to know what kind of shenanigans Dick Cheney implemented with his Unitary Executive.

The pending lawsuits against AT&T and other telecommunications companies for having violated the law by enabling warrantless eavesdropping on Americans' telephone conversations is one of the very few remaining avenues (though not yet the only one) for obtaining a court ruling as to whether the NSA spying program -- which the President ordered for five years at least -- was illegal. If Democrats do what the Times article suggests they are prepared to do, i.e. grant retroactive immunity to telecoms, that would compel dismissal of those lawsuits, which in turn would destroy what is perhaps the last chance for ever obtaining a judicial determination as to whether the President broke the law. What possible rationale would lead them even to consider such a thing?

That is, if Congress really wants to give immunity to the telecoms--which really translates into giving the federal government immunity--make them wait until we at least use the courts to expose the wrong-doing of the past. After all, if we don't, we will never hold BushCheneyAddingtonGonzales responsible for their law-breaking.

The key, it seems to me, is speaking honestly about what the underlying issues are. bmaz has pretty much convinced me--the telecom immunity thing is really a call for immunity for the Administration. And that's something we ought to be able to pressure Democrats not to cave on.

Update: I wanted to elevate this comment from selise (which suggests I'm at least partially wrong):

i think there's evidence that there was a time, early on, without an AG certification.

from USA TODAY:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

Comments

[selise]

"... telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. "

i think there's evidence that there was a time, early on, without an AG certification.

from USA">http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm">USA TODAY:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

my bold.

btw, i don't think this, if true, takes away from the bushco liability - it just means the AT&T et al. are not off the hook.

i'm not caught up on all the comments, so maybe this has already been discussed?

[cboldt]

You can bet that, besides the cooperating telcoms not getting the assurances contemplated by the statutes, they were also PAID for their efforts. Carrot and stick.

Anybody who thinks the government aims to protect privacy, I have a bridge to sell. "Us v. Them" isn't always on a political party dividing line.

[bmaz]

cboldt - is that "not" intended? If so, how much do you think they did with out coverage docs from the govt.?

[cboldt]

The attempts at immunity are all about shielding the Bush Administration. Telco immunity is just another shell game fraud being sold like snake oil to the public so that BushCo continues to avoid accountability.

I agree with this too. I don't think the cooperating telcoms have the type of authorization that the statutes contemplate. I think they agreed to cooperate based on being "read into" the secret program, or some other arrangement that doesn't fit the statutory form.

I also agree that a significant objective is to shield the current administration's actions from view and criticism. From view because it's probably been understating the extent of domestic surveillance, and "from criticism," well, that's obvious if they're found out as blatant liars, regardless of their motivations.

But I sure don't expect Congress to pierce the veil. They are believers in and enablers of "big brother" and "big government," dutifully selling snake oil to a gullible public.

I see an interesting interplay between "immunity" and the courts that are now handling cases. IIRC, Anna Taylor Diggs opinion from the WD of Michigan was "hurried" by some outside force - perhaps the multidistrict order being in the pipeline, I don't recall exactly what. But Congress can be pressured to grant immunity by the issuing of an order to produce evidence or a finding of liability, and the Courts can be hurried into decisions by Congress taking up an immunity provision.

[cboldt]

-- cboldt - is that "not" intended? --

Yes. I don't think the government provided a letter with the contents specified in the Title III statute. In other words, if the facts came out, then, as a matter of law, I think the telcoms have liability.

Then comes their effort to shift liability to the government, who may well have crafted indemnification agreements and promises to pay for any and all legal defense, etc.

I see the privacy side of telecommunications as effectively a nationalized enterprise. But the government wants to create and preserve an illusion that it isn't running a secret surveillance force. The P&L side is a bit more private, while being a regulated private industry.

[oldtree]

I do believe we have lost another right. Your "one a day" insult from your government. Too bad it isn't 4 or 10 a day that we learn of.

[cboldt]

-- how much do you think they did with out coverage docs from the govt.? --

I think they had "coverage docs." I don't think those "coverage docs" are in a form that fits the Title III statute.

The NSA was operating pursuant to an EO, and the telcoms that cooperated had to somehow shield their shareholder side from the consequences of being found in violation of "the law." (They can argue that the EO is law too -- setting up a contest between Congressional Law and the EO). "Coverage docs" could be a secret indemnification agreement, as well as some sort of payments, disguised who knows how, to keep the books from becoming skewed.

[bmaz]

I am betting that the telco attorneys are shrewder than he is thinking. And I agree that pressure can be a two way street; especially considering that one of the players here is that damned "librul" 9th Circuit. Those two things being said, let us consider this thought for the sake of argument. If per chance cboldt is correct and the telcos don't have at least the CYA backup contemplated by the statutes (My experience with them inclines they may actually have more than that); for them to expose their customers and other citizens so collected up to the government's "Program" without having even the coverage indicated appropriate in the statutes would be extreme bad faith. I imagine that any immunity cravenly granted by Congress would be based on the "good faith participation of the telcos". The plaintiffs may still be able to maintain on grounds of bad faith. I put this out only for discussion, i am not saying it is the case....

[bmaz]

Ok, got ya, that is consistent then.

[emptywheel]

bmaz

Can you explain that? Are you saying that you could (or definitely would, though with these amoebas, I'm not holding my breath) build immunity such that the telecoms only got it if they could prove they had made a good faith effort to ensure what they were doing was legal? And if they neglected to do what they normally do--get authorization--they couldn't provide good faith?

[selise]

bmaz -

but how do you square the report (above) that Qwest couldn't get any CYA docs from the NSA. or do you think AT&T got something more than the NSA was willing to give QWEST?

[cboldt]

-- If per chance cboldt is correct and the telcos don't have at least the CYA backup contemplated by the statutes --

I think they have CYA backup ... I just think it takes a form other than a "no warrant needed under Congressional Law" type letter.

I also think the CYA backup is itself a classified document. Shell game inside of shell game. But as you've noted, it isn't the telcos who have ultimate liability -- or at least they didn't step into that position thinking they (and their shareholders) were "alone and unprotected."

Imagine the shareholder suits on a finding of massive liability!

[Mark G. Levey]

According to Morton Halperin, former Deputy Secretary of Defense whose own phone was tapped while he served on Kissinger's NSC, one of the chief purposes of the FISA statute at the time it was drafted during the Ford-Carter years was to have AT&T (before its breakup) serve as a sort of private sector watchdog on any effort by the Feds to obtain domestic wiretaps without warrants.

The thinking by the FISA drafters was that Ma Bell would act in its own self-interest by doing everything it could to avoid potential civil and criminal liabilities, and would, if pushed to do anything questionable, itself take issues to the FISC (FISA Court) to review problematic requests.

I wonder what ever happened to that original intent of Congress? A grant of retroactive immunity for those Telcos that didn't challenge The Program would obviously eliminate this deterrent and corrective purpose of the original law.

Has Congress lost its institutional memory, or did everything really change on 9/11? I can only speculate that there are aspects to domestic surveillance that some leaders in both parties, the White House, the Pentagon, and the Intelligence Community would rather the public never learn about.

[cboldt]

-- how do you square the report (above) that Qwest couldn't get any CYA docs from the NSA --

NSA didn't want to provide a specific form of document. Qwest was looking for conformity with Congressional/statutory law, for whatever reason, finding the surveillance order exposed them to liability, and not trusting whatever authority and agreements it was getting from the NSA.

I think AT&T was willing to assume the risk, because it knows it will survive by hook or by crook. Nothing to lose -- just following orders and the people will still need the communications infrastructure.

[cboldt]

-- Has Congress lost its institutional memory, or did everything really change on 9/11? --

Those aren't mutually exclusive. 9/11 amplifies whatever big-brother/centralization tendencies are already present. So do natural disasters.

Funny thing, this "institutional memory." The place it should be important is with the people, and the people lost it a long time ago. Hello Britney and Paris!

What were the programs where the press (back in the day of newsprint) was heavily infiltrated by CIA? Operation Mongoose or something like that? What's to say certain AT&T "employees" aren't likewise endeared to a managed and manipulated society.

[bmaz]

Well, yes you certainly could fashion it to cover only good faith actions. I don't necessarily know that they will specify a level of relative faith, scienter, or however it is put. But the talking points uniformly to date are phrased in terms of "our friends the telcos helping out the government" or "gee whiz the telcos shouldn't be liable for doing the right thing" etc. All that kind of presupposes that the telcos acted appropriately under the law and circumstances; but if the facts are somewhere analogous to (but not specifically like) what cboldt opined, then you could at least fashion an argument they didn't even do the minimum they should have been doing and were thus tools acting in bad faith. Hey, this is theoretical, I am not saying anybody would get to far in a trial or appellate court with it. But it is an important concept for our gelatinous Democratic congress to consider when evaluating what they are doing. If they want to immunize everybody for everything, they will find a way to do it. But they are doing it in the face of logic and morality no matter how you look at it. And it all boils down to that it is the Bush Administration's liability and wanton illegality and/or unconstitutionality. If telcos acted in good faith, they are already covered; if they did not why should they be given immunity?

[selise]

thanks cboldt - that makes sense. especially as QWEST was threatened with loosing future classified government contracts... and soon thereafter CEO Nacchio was charged (and eventually convicted) of insider trading. it took guts for QWEST to say "no".

[bmaz]

On the Qwest and Nacchio deal, that is extremely complicated by the separate issues Nacchio and some other execs had. I have a pretty good inkling that Nacchio tried to leverage his cooperation with the government for more bigger contracts, more "points" or "juice" if you will because he was desperate to cover some irregularities, losses and problems that were present due to his general stewardship of Qwest. The government called his bluff and burned him. He played a hand of aces and eights on the come with a crew that doesn't get bluffed.

[TerFreeTomorrow]

The wornong doings of the past were Plame's dad who worked at NSA. I guess everything he did there is okay now, except the whole program is blown.

[cboldt]

A push from the WH today too, on this subject.

Fact">http://www.whitehouse.gov/news/releases/2007/09/print/20070919-1.html">Fact Sheet: FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
President">http://www.whitehouse.gov/news/releases/2007/09/print/20070919.html">President Bush Discusses the Protect America Act of 2007

I take the demand for immunity as an admission of ongoing secret surveillance.

[litigatormom]

Whatever the ass-covering motivations are behind this bill, the fear that the telcos would turn around and seek indemnity from the government if they get hit with a big judgment can't be one of them. I don't see how the telcos could plead a claim for immunity, unless the government expressly promised it to them, which I really doubt.

There are tort-based theories of contribution, but I'm not sure those theories would meet the exceptions to sovereign immunity set forth in the Federal Tort Claims Act.

I think that the government is less afraid of monetary liability than it is of EXPOSURE, which is what discovery and a trial on the merits would involve. Unless, of course, the telcos manage to get the cases dismissed on the "state secrets" theory....

[litigatormom]

OOPS.

I meant to say, "I don't see how the telcos could plead a claim for INDEMNITY, unless the government expressly promised it to them...."

[bmaz]

litigatormom - It actually turns out that much of the liability is specified by statute, or at least arguably is so I am not sure FTCA is as germane as you might think. Secondly, I am just hard pressed to believe that the telco lawyers didn't do a lot better job on documents than people are giving them credit for. It is my theory that the Bushies are worried about both forms of accountability, monetary from the treasury and for their own exposure as wanton derelicts; with the far greater emphasis on the latter.

[cboldt]

I can imagine an express written promise of indemnification -- especially as there seems to be a secret EO to support it. I can't imagine a programmatic surveillance regime, outside the statutory law, without some sort of cover.

I do agree with the sentiment that the government is worried about exposure. If the people figure out or think they're in the USA equivalent of the USSR, the political picture as between the elites and proles starts to feel a bit different. Cynical me figures the proles can be easily fooled into indifference.

One surreality here is the combination of admitting the TSP (for your own good), and not using the legal justification for it (FISA + AUMF = legal) in defense of the suits.

[bmaz]

"One surreality here is the combination of admitting the TSP (for your own good), and not using the legal justification for it (FISA + AUMF = legal) in defense of the suits."

Federal judges (especially in the 9th) are not proles. And there you have it.