The Dodge on Retroactive Immunity

by emptywheel

Okay. This will serve as a summary of my analysis of the SSCI report on their FISA bill and to show how the SSCI managed to convince themselves to give retroactive immunity to the telecoms. Thus far, I have shown that:

• This report suggests that the Authorization to Use Military Force was central to the enactment of Bush's illegal warrantless wiretap program.
• The report claims they need to give telecoms immunity because, since the Administration invoked State Secrets, the telecoms have no effective means to defend themselves against lawsuits, even if they're innocent.
• The Republicans (backed by Bush's veto threat) want to retain the ability for the Attorney General to declare someone an agent of a foreign power and wiretap them overseas, with no court review.
• The current bill still does not provide court review of whether the government adheres to its own minimization procedures.

Now, as I said, the SSCI pretends they have to give telecoms immunity because mean old George Bush invoked State Secrets, leaving the telecoms with no way to protect themselves against lawsuits. But they use one more dodge to rationalize giving the telecoms immunity.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).

I've bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn't actually specify what the law says. So let's look at the law, shall we?

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here's what 2518(7) says:

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney's law as a law enforcement officer).

As I pointed out above, the committee tries to get around this inconvenient legal fact by waving around purposely vague language, using the phrase "certain other officers" to hide the fact that only specific other officers have the authority to authorize such wiretaps. They do it again in their final justification for extending immunity to the telecoms--replacing the titles of the very specific officers who can authorize wiretapping with another vague phrase, "high-level Government officials."

On the basis of the representations in the communications to providers, the Committee concluded that the providers, in the unique historical circumstances of the aftermath of September 11, 2001, had a good faith basis for responding to the requests for assistance they received. Section 202 makes no assessment about the legality of the President’s program. It simply recognizes that, in the specific historical circumstances here, if the private sector relied on written representations that high-level Government officials had assessed the program to be legal, they acted in good faith and should be entitled to protection from civil suit. [my emphasis]

Effectively, the committee has rewritten the law to accommodate Bush's actions when he deliberately bypassed his own DOJ.

So, in addition to giving the Administration carte blanche to hide its own wrong-doing by invoking State Secrets and thereby depriving its accomplices of any defense, the committee has effectively rewritten the law. Where the law very clearly specifies that only a senior law enforcement officer may authorize wiretaps, they've inserted vague language that extends that authority to any hack who is willing to do the President's Vice President's bidding.

And in the process, most Democrats on the committee have written a convenient excuse for actions that amount to giving not only the telecoms, but Bush and Gonzales immunity.

Comments

[Mad Dogs]

Will the legal eagles hanging around here, answer a question for me?

Does this statement that EW quoted above:

"or by the principal prosecuting attorney of any State or subdivision thereof

mean what I think it means? It seems to say that a State Attorney General has this authority, and further it seems to state any principal prosecuting attorney of let's say, the hamlet of East Goatf*ck, also has such authority.

Am I reading this wrong?

[SaltinWound]

This is just the sort of thing they got away with when the Republicans were running the committee. It was one thing having to decipher these reports and turn over rocks looking for clues when Roberts was in charge. But now? I'm really disgusted (not with you, wheel, unless you ate, like, twelve pancakes, that would be sort of gross).

[emptywheel]

3 pancakes and 3 of our local butcher's sausages, all topped with the last of a bottle of our local syrup guy's maple syrup.

[sailmaker]

A note from Monica Goodling gets the telcoms, the DoJ, and the White House off the hook? Unbelievable, except that with these guys it is totally believable. I wonder if Jello Jay gets to see it - or a reasonable facsimile.

[pdaly]

Nice work, emptywheel.

This begs the question, then. The telcos with their well informed lawyers must have sussed this out before they agreed to BushCo's requests. They had to know the WH approval was illegal. What's in it for them? even if and when a citizen journalist discovers and broadcasts the fact that they and the WH have acted illegally?

[emptywheel]

What's in it for them? By 2004, when they did this, Nacchio had already been fired and it was fairly clear DOJ was going after him.

[Mad Dogs]

What's in it for them? Like EW, I think it was carrots or sticks.

The Telco lawyers knew this was illegal. They weren't and aren't dummies. They decided to roll the dice.

Say "Yes" to Junya, Deadeye, "Add to Subtract" Addison and Fredo, you get the sweet payday of major US gubmint contracts.

Say "No" to 'em, you get the "wolf at the door" prosecutors.

Additionally, I'm sure the Telco lawyers predicated their play with the assumption that should they be "found out", they could "buy"...ahmmm...pardon me, "lobby" their pet Congresscritters to avoid any penalty.

The bottomline was "No risk and plenty to gain".

And we're watching the results of that right now.

[victoria2dc]

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

Question Marcy:

In the bolded emphasis, was the Counsel to the President Gonzo or Harriet? I'm a little confused about which of them was counsel during the times in question.

Seems to me that this is likely the reason Harriet hasn't responded to the subpoena and this is likely the reason Gonzo has lawyered up, right?

[emptywheel]

victoria2dc

The time we KNOW AG didn't approve of the program was March 2004. At that point Gonzales was still in the WH as Counsel and Harriet was still something else.

[earlofhuntingdon]

Why is the Senate working so hard to give George Bush immunity for violating the law? For example, for that sixty day period, only the president's personal lawyer - not the president (the vice president has no legal authority) - "authorized" Telcos to release reams of data to the government. That "authorization" was invalid. The president (or at least his staff) and the Telcos knew it, but continued to cooperate, expecting the president to clean up his administrative "glitch". Mr. Cheney is now trying to do that.

This is not a "glitch". It is actually the Constitution, the law and the DOJ working properly. The program in place prior to that sixty day period (and we only have Bush's word that it was changed and that those changes continue to apply) was so illegal that the top thirty or so officers in the Department of Justice refused to authorize it and threatened to resign. (Who knew about that then?)

That means that the Telcos may have a defense to liability for periods in which they had the correct authorization, and no defense for periods where they knew the "authorization" was invalid, the administration has no defense for its lawbreaking. Why does that scare the pants off the Senate? Is it simply a consequence of Cheney playing hardball, threatening to use his Hoover-like files to blackmail them all? Haven't a clue.

This elaborate game of hiding the legal sausage reminds me of the Dreyfus Affair. The government and French army's attitude was that they could do no wrong. When they did wrong in Dreyfus' case, and sent him to Devil's Island, the government and army denied and lied, denied and lied.

The French and international press finally did its job, thanks in part to Emile Zola and J'Accuse, which convinced the government to finally do its job and correct a manifest error. Dick Cheney considers that responsible course correction to be wimpy beyond bearing.

Who in the press will perform Zola's job today? Is it even possible to do? David Brooks certainly doesn't qualify. Neither does the traditional media, with few exceptions such as KO. IMHO, it is the nontraditional media, Marcy, Jane and Sid Blumenthal, Glenn Greenwald and Scott Horton, who are doing it. But there's a long way to go and a much bigger job to do.

[pdaly]

The stick might be a reason for the telcos to be cooperative (not to mention the money to be made if not caught and prosecuted). As earlofhuffington asks, however, why is the Senate so cooperative?

Since it now appears that the selective prosecution of Nacchio was a teachable moment to the telcoms in 2004, it makes me wonder were any 2004 court cases providing teachable moments to would-be whistleblowers at the NSA?

For example, was the 2004 prosecution of ex-NSA computer specialist (and former WH secret service agent) Kenneth Ford such a lesson for NSA workers? I have no idea whether Ford even worked on telecos' eavesdropping of Americans or whether he was planning to blow the whistle, but his White House Secret Service ties and NSA job suggest he could have been aware of the program.

from http://www.wtopnews.com/index.php?nid=25&pid=0&sid=649981&page=1

"A one-time uniformed Secret Service agent at the White House, Ford worked as a computer scientist at NSA from 2001 to late 2003.

Upon leaving his job, Ford signed a termination agreement that ordered him to give up all secret records he had. But prosecutors claim that before Ford left, he pulled his pickup truck to the loading dock of his building, loaded it with classified documents, and drove off. Assistant U.S. Attorney David Salem described the documents in court as "computer documents for computer people."

Acting on Tucker's [Ford's girlfriend of 8 weeks] tip, FBI agents searched Ford's Waldorf home in early 2004 and found the boxes, including one that was labeled "Top Secret." During the search, Ford confessed to taking the records, although he later claimed he was pressured by the FBI to sign a statement.

Hecht [Ford's lawyer] said Ford met Tucker on the dating Web site Blackplanet.com. [Tucker] testified that she [Tucker] spent 2003 Christmas week with Ford at his home and saw two cardboard boxes in his kitchen. Tucker looked in one and saw the word "classified." In early January 2004, she called the NSA and FBI to report what she had seen."

[A.L.]

Truly excellent post, EW. As you've demonstrated, this report proves that the telecoms acted unlawfully for at least a period of 60 days. If they don't get their immunity now, this report absolutely screws them over because it confirms, in an authoritative document, key facts that were not previously confirmed (at least to my knowledge).

[bmaz]

"(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—"

Well, I would read this to indicate that the AG, DAG, and AAG, as well as ANY, AND ANY NUMBER OF, investigators and/or law enforcement officers they so designate are authorized persons for purposes of making the certification and, further, that the Attorney General of each state, and the county attorney for each county of each state, are also authorized persons for purposes of state action pursuant to state laws. The last part, staking out the authorization for state actors, seems somewhat like a fish out of water here. I am not saying that it is impossible to create a scenario where the inclusion of state and county authorities would be provident; but you have to strain a little and I am having a really hard figuring out why Cheney, Addington et.al. would want this language because it gives state authorities power on their own without it being piecemealed out by the Federal Executive, which is very unlike Big Dick.

[Ishmael]

Even if state as opposed to federal DAs could authorize the program, any state DA doing so would have to have the appropriate security clearances, right? This seems very unlikely.

[bmaz]

After reading Ishmael's comment, it strikes me that I should clear up something I said. It is easy to see why the state authorities are included in the ambit of 18 USC 2518(7); that is the general wiretapping statute for all criminal investigations so you would expect there to be provisions for state action. Utilization of the general wiretapping provisions for purposes of the TSP seems somewhat inapposite here though, for the reasons stated. This is certainly one area that, if the Congress is determined to allow wholesale data collection in the name of national security, ought to be cleaned up and regulated by it's own statute, probably under Title 50 with FISA, instead of under the general criminal wiretapping contemplating individualized and particularized situations.

As kind of an explanation, this section and the historical interaction of all levels of law enforcement with telcos pursuant to it and it's predecessor, are exactly why I have been saying for a very long time that the telcos are not stupid and have a LOT of experience in this type of thing that most people seem to think is all new fangled from the post 9/11 Administration snooping program. They have been working this issue since the dawn of the communications era, and are VERY experienced and good at it; and I can relate a good portion of that from personal experience from criminal cases (and civil rights cases after a criminal case was completed). When the telcos have certification documents in their hand that are presumptively regular on their face, and they almost always do, when the action is validly challenged as to propriety, the telcos simply point the finger back at the governmental entity and demand indemnification and/or assumption of defense on the matter by the government. They have that same ability here; thus there is NO need for the immunity provisions being driven down our throats. This is complete BS and serves no purpose but to shield BushCo when they least deserve it.

[drational]

A.L.
They acted illegally more than 60 days.
They acted illegally and circumvented existing FISA law until January 2007.
Goldsmith told them the program was illegal in March 2004, and Comey, with Ashcroft's backing, refused to continue to allow DOJ to sign off on the illegal program. Instead, Gonzales signed off on the illegal program. This deliberately illegal period (where they had been told by the OLC and DOJ that the program was illegal) lasted for a period of "less than 60 days", then they apparently changed the program in some way to get the DOJ mutineers back on board.
They were illegal before March 10, 2004, flagrantly and knowingly illegal for 60 days thereafter, and probably illegal until they started using FISA again. Then FISA told them they were still illegal. So they had a tantrum and got congress to change the law. They are now trying to get immunity for the TelCos, but in reality, the immunity is for their sorry, illegal asses.

But make no mistake, the illegality was longer than the "less than 60 days".
TelCo immunity is essentially a sorry place to make a stand. It is jailing the hit men while the Don goes free. We need to go after the criminals who compelled the TelCos to collaborate with "presidential authorization". I hope that SJC will make a stand; the SSCI could just be a pass to let the matter get escalated in a more favorable venue. I have to believe that Whitehouse is playing smart. I have seen nothing else to suggest otherwise. Unfortunately, if it slips through SJC, immunity for everyone will likely be a done deal.

[RH Green]

bmaz,
I've been wondering whether the notion of an ex post facto law is applicable to this retroactive immunity issue. Such laws are illegal since they allow for some act committed on day 1 to be made retroactivly illegal on thus prosecutable on day 2, and is manefestly unfair(even diabolical). Retroactive immunity works the opposite. An act committed on day 1, which is illegal and prosecutable is made retroactively legal and not prosecutable on day 2, the fact that the act was illegal when it was committed, notwithstanding. Your comment would be valued, as usual.

[randy-khan]

I do some work in this area. The correct interpretation of the provision is that state AGs and DAs (or the equivalent) can authorize surveillance, but only for things within their jurisdiction. (That is, a state AG can't invoke the provision for a suspected spy, since that's a federal offense.)

I have long thought that what happened here was that the requests were made to the classified divisions of the companies, probably from one guy who worked at NSA to another guy who used to work at NSA, and there was a bit of wink wink, nod nod between them. The classified divisions, as a rule, don't talk to the rest of the company about what the U.S. government buys from them, and I've always wondered if they operated under much oversight at all. (The top execs all are cleared, but that doesn't mean they ask a lot of questions.) It really wouldn't stun me if the first time the CEOs at AT&T and Verizon heard about this was when USA Today broke the story.

That said, the law is very clear on this issue - there are cases where people who were convicted of crimes successfully sued telecom companies for unauthorized surveillance - and I don't have any sympathy at all for either AT&T or Verizon. If they didn't have the institutional controls in place to prevent a violation of the law, that's their problem.

P.S. The ex post facto law prohibition generally is thought of as preventing penalties, not benefits. For instance, it's okay to pass a law that makes something that was a criminal violation no longer criminal. However, in those cases, there wasn't someone who lost something as a result of the law. That makes me wonder if those who lose the right to sue as a consequence of the law might have an ex post facto law claim.

[bmaz]

RH Green - Pretty common question; unfortunately, the answer never is very satisfying. The ex post facto prohibition, along with the related prohibition of bills of attainder, is contained in both Section 9 (in general) and Section 10 (as to states) of Article 1 of the Constitution. Both provisions were included to prevent situations in which kings or other crown heads of governments simply enacted laws criminalizing previously legal behavior in order to punish and/or imprison opponents. So the prohibition, from the outset, has only ever been seen to apply against criminalizing legal behavior after the fact; and not applicable to the decriminalizing of previously criminal behavior. The provisions also have no particular applicability to civil matters. So, bottom line, no help to our situation.

[bmaz]

randy-khan - Unfortunately, same answer as to RH Green; ex post facto will be of no help as the right to sue is a civil issue and not subject to the prohibition. As to your point on the interplay with state officials, from a practical and historical perspective, you are probably correct. My point is simply that the Bush Administration has taken a common, long standing criminal law provision and contorted it to cover their illicit program, which should be separate and distinct from the normal criminal provisions. Conflating the two creates issues. Now it is unlikely that a local county attorney is going to order foreign to foreign snooping, but arguably he could among other things. What really concerns me more though is the thought of state and local prosecutors ordering the large "drift net" type of collections the Bush Administration has clearly been doing. That is a scary thought; and by co-opting this language in the manner they have, I think the Administration has left that door at least somewhat open. And as I have said many times here, if the power to do something is available to law enforcement, they will use it, then abuse it, then exceed it; that is just a part of their DNA. As to the thought that the execs may not have been particularly in the loop; it would be easy enough to see that if it was normal criminal process at issue, but not there. Contracts related to the "Program" "TSP" whatever you want to call it, were not just legal issues, they were potentially huge revenue streams with political implications on a variety of areas including consolidation and conglomeration etc. From the reporting to date, it appears quite clear that the chief executives of all the companies were involved to a significant degree, and trust me, the general counsels would have demanded the same. At least in one case, the management saw the financial windfall potentials as a way to cover their unrelated illicit financial management decisions of their company. No way the critical upper management was too far out of the loop.

[Pete Pierce]

Cowed and Caving: The Democrats' Logo Forever

I think it's important, and I haven't seen EW address this directly, to underscore that State Secrets, the politics of redaction, and selective leaks are certainly not just a Republican MO. The democrats have been doing this consistently in the 109th and 110th Congress.

All of us are pretty interested and good at finding media sources. Some of you, particularly the ones who live in and around DC or used to, ya know who ya are--former US Attorneys in the DC area like Christy or former Congressional and Senate staffers who are attorneys are aren't but know all the kabuki dances around the cloakroom--how to avoid a hearing--how to avoid a markup, etc. etc.

What's struck me consistently is that I haven't gone down as many "dead end roads" since I was 16 and got my driver's license. Then I wanted to see where all the roads around my city led to, and I didn't have to ask anyone to do my exploring.

Every time I want to know what the hell is going on, I'm hit with a dead end sign that says "We'll discuss this in closed session." Nearly anything substantive is discussed in closed session. The Bushies of course selectively leak to the point of one big tautology, and the dems have done zip over diddly zip to stop them.

There's been a lot of ponderin' on Retroactive Immunity, and just as bad the enigma enshrounded in a mystery of SSCI's pathetic bill where it's left up to the AG to decide--not Congress--not the Courts whether there is any reason to call anything a violation--and baby not any AG you're ever going to see will--I don't give a damn who is in the white house (the Democrats went down faster than Pam Anderson in the back seat of a car after a high school football game and they always frigging do.

The government's arguments in the 9th Circuit State Secret cases against the Telcos has been pathetically stupid and one of the panel correctly invoked Alice in Wonderland at the last day of two oral arguments.

Again, again, the bottom line is I don't care who fillibusters and it's pathetic that it only seems to be Dodd--possibly Joe Biden willing to--but ya gotta have 60 votes to invoke cloture and with all the democratic defector sell outs the Administration has that as a slam dunk. This party's way over and the fat lady sang long ago.

Since as everyone knows, most of the switching and circuitry for any of these calls is located in the US I don't care what Mickey Mouse distinctions are made about calls overseas to and from yada yada and yada, your ass is tapped now and it's going to continue to be because your democrats have been completely cowed--completely runnover by the politics of fear. It is the one infrastructural mantra of the republicans. I see it constantly from the Bush administration, and I see it from Republicans on the local level.

The Rove email has gone out--use fear, fear and more fear. This weekend, in Georgia, in a case that caught national attention the Georgia Supreme Court freed a kid kept in prison 2 years serving a 10 year sentence for oral consensual sex. The Republicans in that legislature blocked retroactivity on a "Romeo and Juliet" change in the law that made oral sex in a country where the average age of first intercourse is about 14 a misdemeanor. They stupidly did not make the law retroactive for no good reason. but here's the one the Republicans gave then and yesterday. The Senate leader said "Everyone should be scared to death and more afraid than on Halloween that hundreds of sex predators would be roaming the streets now because of this opninion." This is an intentional lie on both the facts and the lawby an individual who lies nearly every time he opens his mouth. A handful of cases will be impacted where the consensual sex in minors 13-15 is "no more than 4 years difference in age." It has nothing to do with sexual predators.

But look what all the Republican fear mongers immediately invoked: "Hannibal Lecter is out there and he's gonna get ya because of a liberal decision."

It may be simplistic analysis but it's accurate. I would like to have anyone show me one good reason why this horrible Surveillance update is not a slam dunk done deal. It is because the Democrats will not lift a finger to meaningfully oppose it. Like lemmings, they can't wait to follow the Republican lead into the sea running from the bogey man.

Steny Hoyer, Pelosi, Schumer, Emanuel, the biggest cipher Specter, Feinstein who to me is Leiberman in frumpy drag, every one of them is cowed and caving. I'll repeat, if you want to characterize the Democrats in the House and the Senate they are cowed and caving at all times.

So here's what you can count on in the final analysis besides no sustained fillibuster on the Telco bill:

No significant resistance to the politics of fear pushed incessantly by the Republicans. It's working beautifully for them. They get whatever the hell they want.

The Democrats can't cave fast enough, quickly asking if they can "have another one."

In the category of the only things the Republicans don't continue to control for lack of a conviction in the Democrats (and a spine):

Pelosi will keep wearing the Tahitian pearls.

Feinstein who caves every minute and votes whatever the Republicans want will keep her feet of clay in Feragammos.

Pelosi has made a paradigm shift in public from Armani to Mizrahi, but still wears the several thousand buck Armani outfits out of the spotlight.

St. John Beltway uniform--on a downturn, but not as exponentially as the housing and mortgaging business.

The four day work week is back in with the blessing of the Democrats who want to corporate jet out of there on Wednesday and Thursday.

[Pete Pierce]

If you want to follow individual Committee or House and Senate votes, WaPo has this site:

Vote Database

[agincour]

Pete Pierce

Thank you for your honesty. As you say, the game is up. I waste so much of my precious time worrying about when honesty and true government will be returned to us that it sometimes makes me sick in the stomach, and certainly in my emotions. The answer is never. The system is broken, debauched, and is in its end state. All that remains is the long wake and the eventual funeral. In the meantime everything else we depend on for our wellbeing is like an old, broken down car that keeps getting worse and worse and worse until it too finally and completely collapses.

[A.L.]

Drational,

I fully agree that the companies acted illegally for more than 60 days. My point was that the Senate Report proves that they acted illegally for at least 60 days. For those 60 days, the companies relied on an obviously deficient certification of legality. The report should be admissible in a summary judgment motion.

[Mary]

1. Keep in mind that Judge Taylor, in one of the only rulings “on the facts” to date, held that at least one part of “the program” that she was briefed on violated the Fourth Amendment. Discussions of ex-post facto aside, a relevant question might be, “Can Congress legislate ‘color-of-law’ actions for Constitutional violations (Bivens) out of existence via statutory immunity” Congress and the telecoms seem to want to claim color of law as their mantle – they were acting under orders from the Attorney General and so should be “exempt” but that actually is the stepping stone to a Bivens action.

2. While normally ex post facto discussions wouldn’t be very applicable to an amnesty approach, the FISA legislation created not just a criminal aspect, but a civil cause of action and penalty. I don’t think there is any question but that criminal amnesty’s can be given, ex post facto (remember Carter letting the draft dodgers return to the US?) However, to the extent that the legislation is seeking to deprive litigants of a civil law right of recovery – ex post facto - and while those claims have been adversely impacted by actions to obstruct those lawsuits, then I think there are some interesting issues raised. I don’t think they are great arguments, but worth the shot arguments.

3. "(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—"

The “principal prosecuting attorney of any State” would be the State AG, but this carve out, along with the subdivisions, is only to the extent such a state AG or subdivision head is acting under a State statute and whatever rights it gives to engage in warrantless wiretaps (remember that some State’s allow one party to the conversation to give consent and there are lots of administrative aspects covered by subdivisions and allowing for things like taping of state government employee recordings at any time, etc). No right for a state AG or other officer to proceed under federal statutes there.

4. There is something very off about either what the committee is saying or Comey’s testimony (or both).

The Committee is acting as though “the program” renewals including a representation that would satisfy 18 U.S.C. § 2511(2)(a)(ii) and the posit here is that when Comey refused to sign off, there was no longer a qualifying document, for a period of around 60 days.

Comey’s testimony seems to be at odds with the Committee’s premise. He specifically testified that what he was being asked to sign off on was not a document that was needed for or being issued in compliance with any statute. There is no way, with the telecom issues, that he would have just “blanked” on this imo.

Here’s the exchange:

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.
But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.
…
SPECTER: …
The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.

There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.

So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off.
…
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

Ok, I’m not the biggest Comey fan around, but I do think he was trying to be forthright and relatively forthcoming at the hearing and I also think he’s not an idiot. And despite the elbows he takes, Specter isn’t an idiot. IMO, this was some of the most important questioning they had, given the telecom statutes and telecom issues.

Something’s very rotten.