Shorter SSCI: The Immunity Is Really for Qwest

by emptywheel

Nope. Mr. emptywheel hasn't made me my pancakes yet.

SSCI's report on the FISA Amendment uses remarkable logic for their justification for retroactive immunity.
It argues that, because the Administration has invoked State Secrets in all the suits against the telecoms, the poor telecoms cannot mount any kind of defense--cannot even prove their innocence, in the case of companies that refused to participate in the warrantless wiretap program. And so, they must be granted retroactive immunity.

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). Current law therefore envisions that wire and electronic communication service providers will play a lawful role in the Government’s conduct of electronic surveillance.

Section 2511(2)(a)(ii) protects these providers from suit as long as their actions are consistent with statutory authorizations. Once electronic communication service providers have a court order or certification, ―no cause of action shall lie in any court against any provider of wire or electronic communication service . . . for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter. Id. The Protect America Act and Title I of this bill provide similar protections from suit for providing information or assistance in accordance with statutory directives. All of these immunity provisions are designed to ensure that wire and electronic communication service providers assist the Government with electronic surveillance activities when necessary, and recognize the good faith of those providers who assist the Government in accordance with the statutory scheme.

To the extent that any existing immunity provisions are applicable, however, providers have not been able to benefit from the provisions in the civil cases that are currently pending. Because the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section 2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch. Thus, electronic communication providers are prohibited from seeking immunity under section 2511(2)(a)(ii) for any assistance they may have provided to the intelligence community, with the approval of the FISA Court, after January 17, 2007.

By addressing the situation in which an entity is prohibited from taking advantage of existing immunity provisions because of Government restrictions on disclosure of the information, Section 203 seeks to ensure that existing immunity provisions have their intended effect. The Committee also intends to reassure providers that as long as their assistance to the Government is conducted in accordance with statutory requirements, they will be protected from civil liability and the burden of further litigation.

[snip]

Providers who did not assist the Government are similarly unable to extract themselves from ongoing litigation, because the assertion of the state secrets privilege makes it impossible for them to demonstrate their lack of involvement. [my emphasis]

See, it's not that the telecoms broke the law. It's just that they're unwitting victims of the Administration's invocation of State Secrets. It's clever (however specious) when you think about it--because this rationale allows SSCI to claim they're actually providing for a kind of judicial review that wasn't there previously.

The procedure in section 203 allows a court to review a certification as to whether an individual either assisted the Government pursuant to a lawful statutory requirement or did not assist the Government, even when public disclosure of such facts would harm the national security. Because an assertion of state secrets over the same facts would likely prevent all judicial review over whether, and under what authorities, an individual assisted the Government, this provision serves to expand judicial review to an area that may have been previously non-justiciable. In addition, the statute explicitly allows the court to review for abuse of discretion the Attorney General’s certification that a person either did not assist the Government or cooperated with the Government pursuant to statutory requirements.

I'm curious. Did Jello Jay Rockefeller get some kind of assurances from the Administration that all of a sudden courts could review this stuff? Because if a court were to determine that the telecoms had not acted in good faith, then they could only rule by breaking revealing State Secrets.

More importantly, think about the underlying logic of this rationale. It accepts the Administration's invocation of State Secrets as a fait accompli, and legislates based on that. In doing so, it takes any review of the Administration's invocation of State Secrets away from the Courts.

But that's okay. I trust this Administration not to invoke State Secrets just to hide its own lawbreaking. Really I do.

Comments

[oldtree]

please wait for brunch. I'm riveted

[earlofhuntingdon]

Telcos' actions are independent of the government's. They are liable for them, just as a military officer is personally liable for following an illegal order and a CFO is personally liable for knowingly filing false financial statements for his corporate employer. Separate crimes, separate penalties.

The Telcos know by heart the statutes that prohibit them from giving information to the government. They are as skilled as David Addington in evaluating the government's claims excepting them from those prohibitions. They weren't witless creatures responding to Dick Cheney's whip and chair.

It's easy to imagine Cheney holding court over spilled whisky, empty shotgun shells and the remnants of hand-rolled cigars, implying to his Telco boys (like Libby) that they’ll have immunity. Easier to imagine him hinting at the rapid approval of bonus and career procuring mega-deals (Cingular, Sprint, Bell South, etc.), while leaving unspoken his threats of denied government contracts and the abuse of the regulatory process that is these companies’ daily bread.

Cheney now has to make good; he does not ask nicely. But let's not allow Congress to think that granting Telco immunity is normal, behind-the-wood shed politicking. Let's make loud and clear that there will be an electoral price to pay for shredding the Constitution and caving in to Dick Cheney. Or else, like the Eloys feeding the Morlocks in H.G. Wells' Time Machine, we will be complicit in our own demise.

[Mad Dogs]

I like /snark this part of the Senate's report:

"Given the scope of the civil damages suits, and the current spotlight associated with providing any assistance to the intelligence community, the Committee was concerned that, without retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation."

What, a FISA warrant is just a piece of paper?

I'm gob-smacked that the SSCI folks who wrote this drivel would expect us to see anything but a total cave-in to the poor, poor, woefully ill-represented Telcos.

Why, the poor Telcos had such incompetent legal beagles that who could blame them for falling for Junya's tricks.

"Oh lawdy, we be goin' to the poorhouse. All because we jest couldn't say no."

[pdaly]

Well, at least the SSCI shows concern for protecting the welfare of some people. That's a start. Now if only we could expand the SSCI's conception of defending the welfare to include that of the people of the United States...
No retroactive immunity. Imagine the business opportunities (and jobs) that await the American people when and if the telco's are destroyed by civil litigation. Even the republicans could get excited about this.

[bmaz]

There ought to be provisions making it a criminal offense to misuse the State Secrets claim (yes I know that would kind of eviscerate the matter; I don't care the principle sucks to start with) AND a corollary provision tolling (extending) the statute of limitations on any crime committed OR covered up through invocation of a State Secrets claim. What is being reported on in general in this extended series of "Pancake Posts"; is pure horse manure. The Administration has supplied the telcos with immunity for conspiring with the criminal acts of the Administration and, then, willfully and wrongfully prevented the telcos from gaining that immunity until the original criminal acts of the Administration have been effectively immunized. This is a scam worthy of a top notch Mississippi Delta flim flam man. How in the world is anybody biting off on this?

[P J Evans]

bmaz, I do believe you're smarter that these senators. They obviously will fall for anything.

[theExile]

"I trust this Administration not to invoke State Secrets just to hide its own lawbreaking. Really I do."

I am holding the Easter Bunny hostage, would you care to pet him MT? He's so cute and trusting, kinda like you - ok, I know you're being facetious, so am I!

[Paper Shredders]

This Is a very informative blog , I am really pleased to post my comment on this blog . It helped me with ocean of knowledge so I really belive you will do much better in the future . Good job web master .
http://www.shredderwarehouse.com

[herefast123]

acer btp-44a3 battery

[herefast123]

acer travelmate 2500 battery