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How Much Difference Would The Proposed Immunity Deal Make?:
Writing on the proposed deal to grant the telecom companies immunity in the lawsuits filed against them for working with the intelligence agencies, lawprof Michael Dorf suggests this analogy:
Suppose an FBI agent approached a generally law-abiding citizen that I'll call "Shmerizon," and the following conversation ensued.
FBI Agent: I'd like you to whack Shmarlos the Shmackal. He's a terrorist.
Shmerizon: By whack, you mean . . . .
FBI Agent: You know what I mean.
Shmerizon: Uhm, isn't that illegal?
FBI Agent: I'm with the government. If I tell you to do this in the interest of national security, it's not illegal. Understand?
  Shmerizon proceeds to kill Shmarlos, even though another citizen, Shmest, when presented with the same demand, refused to act without a court order. Now suppose that instead of prosecuting Shmerizon for murder, and without denying that what Shmerizon did was clearly illegal at the time notwithstanding the FBI Agent's statements, the government decides that Shermizon should be given retroactive immunity for the murder because he shouldn't be punished for helping out his government in time of need. Even assuming one finds Shmerizon's plight sympathetic, shouldn't the most minimal commitment to notions of government regularity require that any immunity for Shmerizon be coupled with some form of accountability on the part of the FBI Agent or his superiors who asked that Shmerizon commit murder?
  Is the only difference between this situation and the actual current proposal for immunity for the phone companies that violated FISA the fact that we think that murder, even of a bad guy like Shmarlos the Shmackal, is properly illegal, while President Bush and many in Congress think that FISA's restrictions were not just unwise but so grossly unwise as to vindicate anyone who ignored them?
  The answer to Michael's question is "no," and I think Michael's framing reveals a common misunderstanding about the proposed immunity deal. The telephone companies' liability turns out to be pretty different from the oft-debated question of whether the "Terrorist Surveillance Program" was legal. As a result, I think the immunity agreement is not quite the outrage many people in the blogosphere seem to think it is. To see why, we need to get a bit into the weeds of the surveillance statutes (oh goody!, you're thinking), but I hope it will be worth it to understand what's going on.

  Let's start with the lawsuits involving the so-called Terrorist Surveillance Program, the warrantless wiretapping program disclosed by the New York Times in December 2005. These lawsuits have long had a major hurdle, the existence of 18 U.S.C. 2511(2)(a)(ii)(B), a provision exempting the phone companies from liability for warantless monitoring if the Attorney General gives them a certification concluding such monitoring is legal. Here's what it says:
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 certification in writing by . . . 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[.]
  Under this exception, the phone companies are "off the hook" (so to speak) if they received the proper certification. Once they have the certification, they can help the government without triggering any liability. (In case you're wondering, I believe "persons authorized by law" means government agents, not persons doing something that in fact turns out to be lawful.) That's a really important exception, as press reports have indicated recently that the government did in fact provide the phone companies with a certification signed by the AG that no warrant or court order was required. (Unfortunately I don't have a link, because the clearest statement of this was something I heard on NPR a few days ago; I couldn't find the link to a good report on it, but I can search more if others doubt that there was in fact a certification.)

  Given 18 U.S.C. 2511(2)(a)(ii)(B), I think immunity for the lawsuits against the telcos has very different stakes than just the legality of the TSP. Assuming the accuracy of the press reports stating that there was a certification, Congress has already explicitly provided immunity for the telephone companies in these sorts of circumstances. The role of the immunity agreement is just to cut the litigation short that would prove the point.

  Consider how the lawsuits might play out without an immunity deal. The key item for discovery is of course the certification, which presumably explains the program and states the AG's conclusion (whether correct or not, and presumably without any reasoning) that the program is legal. The plaintiffs will say that they need to see the actual certification because they don't know if what the phone companies did is consistent with it; the government and the telcos will say that the state secrets privilege blocks the certification's disclosure. Assuming the certification explains the parameter of the program, that will surely be correct. Then the trial judge has to figure out if he can determine if the program actually did fit within the parameters of the certification, although he can't very well allow discovery into the program without once again running into the state secrets privilege. So presumably down the road the judge concludes he has to dismiss the claim under the state secrets privilege, and then the lawsuit spends another 5 years bouncing around the appellate courts until other courts agree. And then multiply that by all the other lawsuits, all of which presumably lead to the same outcome.

  We don't know all the facts, obviously, and maybe I'm just missing something obvious. But if I'm in the right ballpark, it seems to me that immunity agreement just cuts short the litigation that should end up being dismissed anyway without new legislation.

  My sense is that the proposed immunity agreement would have a more significant role with lawsuits involving the NSA Call Records program, the program involving voluntary disclosure of non-content records. A certification isn't enough here, because the disclosure of non-content records is not covered by 18 U.S.C. 2511(2)(a)(ii)(B). Here the key statute is the Stored Communications Act, which (to simplify things a bit — details here and here) bases liability on the provider's good faith belief that there was an emergency that allowed the disclosure.

  The immunity language in the proposed statute is limited to cases in which the telco was "described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (I) authorized by the President; and (II) determined to be lawful." If I had to guess, I would guess that the head of the NSA or the AG or someone wrote a written request to the phone companies asking them to participate and disclose their call records, and explaining that they thought there was an emergency that authorized the disclosure. The phone company lawyers presumably determined that on the basis of the government's request they had a good faith belief that there was in fact an emergency.

  If I'm right about this, the effect of the immunity deal would be to cut short the inquiry into the individual telephone companies' good faith in disclosing the records. I don't know exactly how you determine the good faith of a corporate entity, but presumably that requires some sort of hearing into the minds of the key decisionmakers. I suppose they would have to take the stand and testify as to what they were thinking, and a jury would have to say if the thought the corporate bigwigs had a good faith belief (and therefore there was no liability) or lacked such a belief (in which case the liability could go a long way toward bankrupting the telcos).

  If I'm right about this, I think the impact of an immunity deal would be to (a) cut short TSP litigation that won't be going anywhere anyway, and (b) to block the telcos from being subject to a "bet the company" lawsuit hinging on their good faith. I think there are arguments for or against the immunity in light of these stakes. But I don't think it's a case of immunizing the telephone companies for a blatantly illegal act, as Professor Dorf suggests with his analogy to a hypothetical murder.

  UPDATE: It occurs to me that the call records litigation would also raise major state secrets problems if the government officials told the telco folks some important details of investigations in order to persuade them that there was a real emergency justifying disclosure. If the NSA said something like, "we're tracking the following attacks, and we foiled this one and we need your help with that one" then those details would be highly relevant to show the telcos' good faith. That means you can't really get to the officials' good faith without getting into the details (in open court) of what the government told the telcos.
Dave Hardy (mail) (www):
Did Shmarlos need killin', or didn't he?
12.21.2007 12:33am
William Spieler (mail) (www):
Wouldn't Shmerizon be off the hook due to Cox v. Louisiana, 379 U.S. 559 (1965)? Considering the FBI would be the criminal investigative arm akin to the "highest police officials" in Cox...
12.21.2007 1:13am
William Spieler (mail) (www):
... noting of course that Cox does say "telling demonstrators how far from the courthouse steps is 'near' the courthouse for purposes of a permissible peaceful demonstration is a far cry from allowing one to commit, for example, murder, or robbery," and that Cox was about criminal liability, not civil liability to what would be the deceased in this hypothetical.

I guess I shot down my own argument :)
12.21.2007 1:17am
Gilbert (mail):

...the impact of an immunity deal would be to (a) cut short TSP litigation that won't be going anywhere anyway, and (b) to block the telcos from being subject to a "bet the company" lawsuit hinging on their good faith.


I think this kind of reasoning utterly fails to meet the objection. Those of us who oppose retroactive immunity are not worried that justice can be expensive and at times put corporations in difficult situations. Our objection is that it is manifestly unfair to write generally applicable laws and then pick and choose when they should be applied. We are a nation of laws, and we ought to act like it - if this is a bad law, repeal i; otherwise, let it apply to all, equally.
12.21.2007 1:33am
Tugh (mail):
Orin,
How about a Bush-appointed Federal Judge's ruling that no reasonable phone company could have had a good faith belief that what it was asked to do was legal?

I don't have the cite handy, but Glenn Greenwald at Salon covered this very extensively. If you'd like a cite, I can probably find it.

Would you please address it? Thanks.
12.21.2007 1:48am
OrinKerr:
Tugh,

A cite would be helpful, as I'm not sure what you have in mind.
12.21.2007 1:52am
Tugh (mail):
Orin, I hope you don't mind if I post this excerpt from Greenwald's interview of Cindy Cohn at Electronic Frontier Foundation where she addresses the "good faith" argument:

Claims of telecoms' "good faith":

GG: One of the arguments that the telecom industry is making, and that advocates of telecom immunity or amnesty are making, is that these telecoms acted in good faith when they did what they did, and so it's unfair to punish these companies -- even if they technically broke the law -- because they were acting in good faith, acting as what the Washington Post Editorial Page described as good "patriotic corporate citizens" trying to protect the country. I have two questions about that:



(1) is it true that under the law, if they can prove they acted in good faith, then at least for the statutory claims, there won't be any liability?; and,



(2) aren't those claims, those arguments, that they're making now [about their supposed "good faith"] ones that they made before Judge Walker, that he rejected, when he refused to dismiss the case against them?



CC: Yes and yes. To answer your first question: the FISA law already has very broad immunities for the telecoms, and if it was the case that they were acting in good faith with an honest belief that what they were being asked to do was legal, then they would already have immunity, and they don't need an additional immunity from Congress for that.



And it's also the case that they made all these arguments to Judge Walker and Judge Walker's decision on this addresses those arguments very directly -- he said no reasonable phone company in the position of AT&T could have thought that what they were being asked to do was legal. It is not the case that this phone company could have believed that the wholesale surveillance of millions of its customers for five years, six years and counting, could be legal under the law.



Remember, these phone companies are very sophisticated about these FISA laws and the other laws that explain how and when they can cooperate with law enforcement. These aren't some rouges. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone.



But even if they didn't, I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"



The answer to that has to be "no." I don't think you even need a law degree to figure that one out.
12.21.2007 1:55am
Tugh (mail):
Orin, thanks for replying. Salon's site is currently down, but I'm looking for the cite.
12.21.2007 1:57am
OrinKerr:
Gilbert,

Please understand -- I was responding to Professor Dorf's post, not your personal views.

Turning to your view, do I understand you that your objection is purely at a conceptual level that has nothing to do with the merits of the lawsuits? So, for example, if Congress were considering legislation directing that the telcos automatically lost, you would be equally upset and would object that "it is manifestly unfair to write generally applicable laws and then pick and choose when they should be applied"? That's certainly a principled view. Just so I understand, you're saying that is the general position of "those who oppose retroactive immunity"?
12.21.2007 1:58am
Tugh (mail):


Here's the cite



As Media Matters for America previously noted, Walker denied AT&T's motion to dismiss, which claimed, among other things, "qualified immunity with respect to plaintiffs' constitutional claim," ruling in part that, if, as the lawsuit alleges, AT&T "provide[d] the government with direct and indiscriminate access to the domestic communications of AT&T customers," then the company "violate[d] the constitutional rights clearly established [by the Supreme Court] in Keith [i.e., United States v. United States District Court (1972)]." Walker's ruling continued: "Moreover, because 'the very action in question has previously been held unlawful,' AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal." Walker's decision has been appealed and is now pending before the U.S. Court of Appeals for the Ninth Circuit, which heard arguments on the appeal on August 15.
12.21.2007 2:03am
OrinKerr:
Tugh,

Off the top of my head, I would think that Judge Walker's ruling doesn't really address this issue; whether a reasonable telephone company could have held this view is different from whether the phone company had this view in good faith. (I'm assuming that Judge Walker was privy to the full range of communications between the govt and the telcos; if not, that's also worth considering.)
12.21.2007 2:04am
Oren:
The plaintiffs will say that they need to see the actual certification because they don't know if what the phone companies did is consistent with it; the government and the telcos will say that the state secrets privilege blocks the certification's disclosure. Assuming the certification explains the parameter of the program, that will surely be correct.
Considering that the parameters of the programs have been widely exposed in the popular media, it hardly seems proper to consider them state secrets any more.

The phone company lawyers presumably determined that on the basis of the government's request they had a good faith belief that there was in fact an emergency.
I would believe this in 2001 or 2002, maybe even in 2003 but past that, Congress having had sufficient time to amend the relevant statutes, I think it strains credulity to say that the situation was still an emergency. Then again, the US has been officially in a state of emergency for the past 70 years, indicating to me that we have completely lost any sense of what that word actually means.
12.21.2007 2:07am
dsn:
I can't speak for Gilbert, but yes, that law would be equally bad. But the real problem with your argument is that the states secrets doctrine itself is badly flawed. In a civilized, free society, nothing the government does should be beyond scrutiny. If there is a risk caused releasing operational details, then hold the trial in camera, in front of a judge and with lawyers with appropriate security clearances. Surely the cases where liberty is most at stake are the ones that should have the greatest review, rather than be the times we just accept what the executive says because they say so?

And to turn your argument around, would you support a policy of pardoning suspects in cases that look like they're not going anywhere?
12.21.2007 2:10am
Tugh (mail):
Also, only gov-t can assert state secrets privilege; telcos can't do it.
12.21.2007 2:11am
Cornellian (mail):
Granted a good faith standard is more lenient than a reasonable person standard, but how can you have even a good faith belief that handing the government the results of covert surveillance on thousands of your customers over a period of years is legal?

A good faith defense is that you honestly believed what you were doing was legal An honest belief that what you were doing was illegal but for a patriotic purpose doesn't cut it. And as an earlier post noted, the Telcos can afford good lawyers - to the extent that anyone knows what the law requires on this issue, they do.
12.21.2007 2:11am
Oren:
This issue . . . whether a reasonable telephone company could have held this view is different from whether the phone company had this view in good faith.
Isn't the former a prerequisite for the latter? I mean, one cannot have a bona-fide belief in something one knows is unreasonable.
12.21.2007 2:14am
OrinKerr:
Tugh,

Just saw the link, thanks. This analysis doesn't really mean much, as it turns out. That portion of the opinion involved the telcos' participation in the TSP under the Fourth Amendment, but it was based on accepting the allegations of the complaint as true, not on the facts that actually happened. The plaintiffs came in and made allegations that the government is basically wiretapping everyone's phone calls in America, and then Judge Walker said, "okay, *if* these allegations are true, then the phone companies could be liable." But that's quite different from actually having the facts of the program. You need to know the detailed facts to answer the Fourth Amendment issue, and I don't think you can get the facts without the disclosure of state secrets.
12.21.2007 2:15am
OrinKerr:
DSN,

Please understand, I am not responsible for the state secrets doctrine. When I say a court would likely reach a result, I see that as a question of prediction, not an exercise of personal will.
12.21.2007 2:17am
Tugh (mail):
Orin,

I obviously can speak only for myself, but the whole notion of immunity to telecoms for potentially illegal spying on the whole internet (if the whistleblower's revelations are true) is deeply repugnant to me. I don't buy for a second the notion that the companies should be excused because they allegedly acted out of patriotism. Since when is there a "patriotism" exception to criminal laws? One of the key differences between the US and a whole lot of other countries is that we have the government of laws. Providing the immunity for something that we don't even fully know what goes against everything the US stands for, pardon the high words.

In my view, the true purpose of this whole drive to provide immunity is to prevent the disclosure of how massive and unprecedented the dragnet was.

I'm sorry for stating my personal views on this absurd immunity proposal but it really really upsets me.
12.21.2007 2:18am
Oren:
You need to know the detailed facts to answer the Fourth Amendment issue, and I don't think you can get the facts without the disclosure of state secrets.
That seems premature. Perhaps there is enough material already on public record that damn the program even without fishing in classified waters?
12.21.2007 2:19am
OrinKerr:
Oren writes:
Isn't [a reasonable belief] a prerequisite for [a good faith belief]? I mean, one cannot have a bona-fide belief in something one knows is unreasonable.
No, you can have a subjective belief that is objectively unreasonable. Happens all the time, even on this blog.
12.21.2007 2:20am
OrinKerr:
OrinKerr:
You need to know the detailed facts to answer the Fourth Amendment issue, and I don't think you can get the facts without the disclosure of state secrets.
Oren:
That seems premature. Perhaps there is enough material already on public record that damn the program even without fishing in classified waters?
My response:

I think I'm pretty well informed about how the Fourth Amendment applies to the telephone network and the Internet, as well as the public information on the TSP, and I know I can't do it based on what has been publicly disclosed. I think the program was probably constitutional, but I can't be sure without knowing the very specific details. Fourth Amendment law is just hyper fact-sensitive, and there are dozens of very specific facts I would need but to know but don't know to feel remotely comfortable about making a clear legal conclusion on this.
12.21.2007 2:25am
Oren:
I don't buy for a second the notion that the companies should be excused because they allegedly acted out of patriotism. Since when is there a "patriotism" exception to criminal laws?
Would it satisfy you if the telcos had instead agreed to break the law on the condition that the administration going to the Congress to get it fixed as soon as reasonably possible?
12.21.2007 2:25am
Tugh (mail):
Orin,
Turning back to legal issues, I respectfully disagree that the facts of the program are beyond reach due to state secrets privilege. First, telcos can't even assert this privilege, only the gov-t can. Second, IF the allegations are true, telcos should be liable because what they did was illegal, despite the state secrets privilege. The privilege can't be a ruse to cover up criminal behavior. The judge can find out "the detailed facts" without necessarily disclosing state secrets. And if state secrets privilege is used by the Bush administration to cover up something illegal, of course these criminal activities should be exposed.
12.21.2007 2:25am
Tugh (mail):
Oren,

No. Laws are the laws and should be abided.
12.21.2007 2:27am
OrinKerr:
Tugh,

I don't follow your arguments. First, can't the government intervene and assert state secrets, as it already has? Second, can you explain how the legal issues I have identified can be answered without disclosing state secrets? You express great confidence that it can be done, but how?
12.21.2007 2:34am
Oren:
OK, I'm not asking you to draw a conclusion about the program but rather suggesting that it is possible that there is enough public information, especially Mark Klein's testimony, that would establish the programs illegality.

Furthermore, I don't question your expertise in 4A law but if MK's testimony is correct then the government's actions seem (and, remember, I'm not that bright) to at least be questionable but I suppose that's another thread.
12.21.2007 2:37am
Oren:
The privilege can't be a ruse to cover up criminal behavior.
That's how it was born and that's how it's been used ever since. Hopefully, that's how it will die as well. It's amazing to me that a legal ruling based entirely on a lie continues to be good law in this country.
12.21.2007 2:41am
Oren:
No. Laws are the laws and should be abided.
That's a bit extreme, even for me (if you've been here long enough, you'll know what that means). Genuine emergencies are often severe enough to warrant breaking the law only for long enough that the legislature can take the issue up in light of new circumstances.
12.21.2007 2:44am
Tugh (mail):
Orin,

Of course, the gov-t can intervene. But it is ultimately the courts who decide whether the intervention is warranted. As I understand, so the government already has intervened and tried to get the cases dismissed and lost DESPITE the assertion of state secrets privilege.

Second, the legal issues that you have identified can be answered without disclosing state secrets because a judge can conduct an in camera review, require lawyers to obtain top secrets clearance, etc. It is not as if the choice is between dismissing the claims and disclosing the full details of the surveillance.
Now, the central question seems to be whether the allegations of the whistleblower are true (that the government forced ATT to basically surveil the entire internet) are true. The court can make this determination without requiring the full disclosure of the program even to itself, much less everyone. As I said, the court can conduct closed, in camera sessions, question the government and ATT attorneys, etc. If the court is satisfied that the program was not a full-scale dragnet of all Internet communications, then most likely the case will be dismissed. If, however, the court reasonably believes that the allegations are true, then it can make a determination that the state secrets privilege is being abused and is being used to cover up criminal activity. In this case, state secrets of criminal behavior will be revealed.
12.21.2007 2:45am
Tugh (mail):
Oren,

I agree that the state secrets privilege is being interpreted way too broadly by courts. But even the current broad interpretation does not allow for it to be used to cover up illegal behavior. The fact that it is sometimes/often used for this reason is no excuse. The whole point of the privilege was to prevent disclosure of LAWFUL state secrets, not ILLEGAL state secrets.

That said, I hope that Congress and a new President work on the law significantly modifying Reynolds.
12.21.2007 2:49am
Tugh (mail):
And Oren, if the allegations are true, this criminal activity was going on for 5 years after 9/11; so in my mind there can be no good faith belief that telcoms still believed it was an "emergency".
12.21.2007 2:51am
Tugh (mail):
Orin,

Judge Walker's opinion provides at least some answers to your concerns. From the opinion:


But it is important to note that even the state secrets
privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. See Hamdi v Rumsfeld, 542 US 507, 536 (2004) (plurality opinion) (“Whatever power the
United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”). To defer to a blanket assertion of secrecy here would be to abdicate that duty,
particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.

....
Accordingly, the court concludes that the state secrets
privilege will not prevent AT&T from asserting a certification based defense, as appropriate, regarding allegations that it assisted the government in monitoring communication content. The court envisions that AT&T could confirm or deny the existence of a certification authorizing monitoring of communication content
through a combination of responses to interrogatories and in camera review by the court. Under this approach, AT&T could reveal information at the level of generality at which the government has publicly confirmed or denied its monitoring of communication content. This approach would also enable AT&T to disclose the nonprivileged
information described here while withholding any
incidental privileged information that a certification might contain.
12.21.2007 3:15am
Tugh (mail):
I certainly don't want to hijack this thread, but Orin, plaintiffs allege that there may NOT have been a proper certification:

Even if “the government instigated,directed and/or tacitly approved” AT&T’s alleged actions, it does
not inexorably follow that AT&T received an official certification blessing its actions. At the hearing, plaintiffs’ counsel suggested that they had “information and belief based on the news reports that [the alleged activity] was done based on oral requests” not a written certification. Id at 24:21-22.
Additionally, the phrase “judicial or other lawful authorization” in paragraph 81 parallels how “a court order” and “a certification” appear in 18 USC §§ 2511(2)(a)(ii)(A) and (B), respectively; this suggests that “lawful authorization” refers to a certification.
Interpreted in this manner, plaintiffs are making a factual allegation that AT&T did not receive a certification.
12.21.2007 3:24am
Gilbert (mail):
@OrinKerr


do I understand you that ... if Congress were considering legislation directing that the telcos automatically lost, you would be equally upset and would object that "it is manifestly unfair to write generally applicable laws and then pick and choose when they should be applied"?


Yes, and I believe that this is precisely the position taken by Senator Dodd without whom retroactive immunity would probably be a reality today. We disapprove of bills of attainder and patronage in this country for the same reason - a sense that laws must be generally applicable or else inherently unjust. If these companies are innocent, let them prove it, if not, let them be punished accordingly.

That said, I would not (at least on this basis alone) argue that it is outside of the abject power of Congress to provide such retroactive immunity.
12.21.2007 3:41am
David Schwartz (mail):
The problem is that the public has no idea what information AT&T was given when they decided to cooperate with the government. We have no way to know if AT&T acted reasonably to help the government in a genuine emergency or sold out the privacy of millions of people. If they did sell out the privacy of millions of people, we have no idea why. Was it out of misguided patriotism? Or were they promised (or given) something by the government?

Immunity is an attempt to sweep all of these issues under the rug. The government has no right to use immunity or state secrets or any other such thing to hide its own wrongdoing from the public.
12.21.2007 3:42am
pireader (mail):
Professor Kerr -

You seem to view the proposed immunity provision as merely good housekeeping -- saving the court's time and defendants' legal fees by getting to an inevitable answer faster ("The role of the immunity agreement is just to cut the litigation short that would prove the point.")

Well maybe. But the Bush Administration declaredly regards the current intelligence bill as a vital national-security measure. Yet they've threatened to veto any version that doesn't contain the immunity provision. Why would they take such a drastic position, potentially jeopardizing the nation's security, merely on behalf of good housekeeping? (After all, the court's and defendants' costs are a relative pittance.)

Doesn't the opposite explanation seem more likely--that they're concerned the litigation has a good chance of succeeding?

Anyway, good job ... your post made me re-think (as you usually do).
12.21.2007 9:50am
devil (mail):
I'm usually a lurker, not a poster, but I felt the need to chime in here with respect to the point about the suits in the TSP context. In determining what you think the outcome might be, it is important to look carefully at section 2511(2)(a)(ii). It permits the telecoms to allow surveillance if there is either (1) a court order or (2) a certification from [the attorney general or one of his deputies] that no court order or warrant is required by law, that all statutory requirements had been met, and the telecoms' assistance was required. So it isn't enough that the govt gives the telecoms a piece of paper with the president's ok on it. That piece of paper must contain certain things, including the assurance that FISA's statutory requirements had been met. So without knowing what those certifications contained, we don't know if those suits are, in fact, going nowhere even without immunity. Moreover, the statute specifies that the certification is valid only if it comes from certain govt officials in DOJ. But as the Senate Select Committee on Intelligence (SSCI) report on SSCI's version of the FISA Amendments Act of 2007 makes clear (I'd post the link if I knew how, but it should be easy to find on the web if you're interested - I think the bill is known as S.2248), there was a period of at least several months in which the certifications were signed by Alberto Gonzales (when he was WH counsel, not when he was AG). So those certifications would have been invalid under the statute even if they contained the proper assurances of statutory compliance. In fact, it is likely that this was the motivation for the now-famous hospital room confrontation with John Ashcroft - Al Gonzales needed his certifications signed by the AG (or his deputy) and they were unwilling to sign. So Al Gonzales himself began signing the certifications until the TSP was modified to avoid mass resignations within DOJ. In short, while it is possible that the TSP aspects of the suit would be dismissed anyway b/c the telecoms could show valid certifications (if the govt would allow them to present them by the court instead of invoking state secrets to prevent them from defending themselves), it seems to me likely that they would not be dismissed on this grounds.
12.21.2007 9:55am
Just Dropping By (mail):
Prof. Kerr sure has to work hard to make me lose respect for him, but this post is a winner. Telcos should get immunity because in his own words "presumably down the road the judge concludes he has to dismiss the claim under the state secrets privilege, and then the lawsuit spends another 5 years bouncing around the appellate courts until other courts agree. And then multiply that by all the other lawsuits, all of which presumably lead to the same outcome." (Emphasis added.)

So, let me get this straight, if a company is sued and it can raise a non-frivolous defense to the claim, it becomes entitled to have the appropriate legislative body immunize it for its conduct? Well, that certainly takes care of tort reform. Sorry, Prof. Kerr, maybe it's just because I'm a litigator and therefore self-interested, but that's not my understanding of how anything called a "justice system" works. This is simply crony capitalism at its most putrid. And while Prof. Kerr is "not responsible for the state secrets doctrine," he is certainly responsible of stretching it to reach the result he wants here. To implement this program, literally hundreds (if not thousands) of private individuals had to be informed about parts of it and probably dozens (at the upper levels of the telcos) would have been told about substantially all of it. I'm not aware of any case in which the state secrets doctrine has been held to permit government officials to tell as many private individuals as they wish about something and still call it a "state secret"! And finally, while I know Prof. Kerr will just trot out the tired old pony that he's "just talking about what the law is," as any litigator will tell you at some point public policy concerns become part of the legal calculations that a court must make in deciding how to apply a rule. The idea that government officials can de facto immunize private actors for their unlawful conduct by falsely telling them that the conduct is lawful and then adding, "Shhh! Don't tell anyone! It's double-super-plus-ultra-secret," pretty much amounts to the death of the rule of law in this country.
12.21.2007 10:03am
M. Gross (mail):
Mr. Kerr is simply stating there's little opportunity cost to the immunity, as the plaintiff is unlikely to prevail even absent the immunity.

It falls into the same category as most legislation against frivolous lawsuits.
12.21.2007 10:26am
JosephSlater (mail):
the phone companies are "off the hook" (so to speak)

The ending parenthetical above is a post-hoc attempt to immunize the author from entirely justifiable retaliation for his malfeasance earlier in the quoted clause.
12.21.2007 10:32am
Bob from Ohio (mail):

if Congress were considering legislation directing that the telcos automatically lost


Sen. Dodd would be leading the charge for the legislation.
12.21.2007 10:55am
Anderson (mail):
Let's not trouble the telcos' pretty heads about filing a 12(b)(6) motion ... let's just void any lawsuit ab initio.

Permit me to doubt that, if the cases are so cut-and-dried as Prof. Kerr suggests, the telcos would be screaming for immunity legislation.
12.21.2007 11:12am
OrinKerr:
Just Dropping By,

I am disappointed by your comment. When I said that courts would "presumably" apply the state secrets privelege, that's because I think that's how the state secrets cases play out. Your response is to accuse me of bad faith in as many ways as you can muster: in your words, I am guilty of "crony capitalism at its most putrid" (whatever that means)," stretching [the law] to reach the result he wants", and "trot[ing] out the tired old pony" of just describing the law. If you think I am wrong, i would be most delighted to hear why; perhaps I am looking at this the wrong way and I can leanr from you. But the bogus accusation of bad faith does no service to your position.

Perhaps you should take a deep breath and try again, this time trying to present actual arguments?
12.21.2007 11:26am
Dave22 (mail):
[Deleted by OK. Dave22, can you e-mail me? If you have problems with my blogging, I would like you to raise them with me directly. Let's chat. Thanks, OK]
12.21.2007 12:01pm
Mark Field (mail):
I think there's an important question omitted from Prof. Kerr's analysis. Taking everything he says as true, does every member of Congress have the requisite information to determine that the conditions for immunity have, in fact, been met? If not, that seems to undercut the argument for any Congressional grant of immunity.

There's also the related issue of whether the members of Congress have the ability to make what might be fine legal distinctions. The post seems to assume that the immunity issue will be clear cut, such that any informed person can make the obvious call. I doubt that will turn out to be the case.

Lastly, I fail to see why the inconvenience to the phone companies in this particular case should receive this disparate treatment. I know that state secrets are (allegedly) involved, but I hardly think the courts are likely to reveal those. What, then, makes this particular case suitable for special legislative immunity as distinct from at least one of the ones on my desk right now? And, I might add, that the case I have not only is crystal clear (it involves res judicata), but the expenses are being imposed on people who, unlike the phone companies, cannot afford the litigation.
12.21.2007 12:18pm
cboldt (mail):
-- But if I'm in the right ballpark, it seems to me that immunity agreement just cuts short the litigation that should end up being dismissed anyway without new legislation. --

.

I agree that the suits are going nowhere, either via assertion of state secret, or via some form of statutory amnesty or indemnification that has the ultimate dropping of the issue happen without disclosing more than has already been disclosed.

.

The only sort of "difference" I see is whether or not Congress will admit, by granting amnesty, that privacy statutes are ephemeral in nature. Congress might prefer the executive be forced to prevail via the use of state secret, thereby permitting Congress to say that at least IT means for privacy laws to be enforceable.

.

There might be a downside risk to the Bush administration, if statutory amnesty is not obtained. A future administration might feel less inclined to assert state secret, and any surviving litigation might serve as a venue for facts relating to warrantless surveillance policy to emerge. Of course, a future administration could voluntarily disclose the same information, regardless of statutory amnesty or the presence of privacy litigation. What caused the facts exposed in the Church hearings to come out?

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In the end, I don't think the pressure of institutional consistency (i.e., "we don't pass laws that are really fake, push come to shove) will carry the day. I see statutory amnesty in the near future.
12.21.2007 12:35pm
Houmi:
Isn't [a reasonable belief] a prerequisite for [a good faith belief]? I mean, one cannot have a bona-fide belief in something one knows is unreasonable.


OrinKerr: No, you can have a subjective belief that is objectively unreasonable. Happens all the time, even on this blog.

Just Dropping By: Sorry, Prof. Kerr, maybe it's just because I'm a litigator and therefore self-interested, but that's not my understanding of how anything called a "justice system" works. This is simply crony capitalism at its most putrid. And while Prof. Kerr is "not responsible for the state secrets doctrine," he is certainly responsible of stretching it to reach the result he wants here.

OrinKerr: I am disappointed by your comment. When I said that courts would "presumably" apply the state secrets privelege, that's because I think that's how the state secrets cases play out. Your response is to accuse me of bad faith in as many ways as you can muster

Heh.
12.21.2007 12:40pm
cboldt (mail):
-- I don't think it's a case of immunizing the telephone companies for a blatantly illegal act, as Professor Dorf suggests with his analogy to a hypothetical murder. --

One obviously distinguishing characteristic of Professor Dorf's murder hypothetical is that it is about murder. The calculus is completely different when the stakes are privacy.

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I don't think the telco's have a "good faith" defense in the form of "We thought this action was within the bounds set by statute." Rather, I think they may have been willing to undertake an activity that they KNEW was "technically illegal" (i.e., clearly outside FISA + 18 USC 2511) based on a good faith belief that the snooper would stand behind the snoop order, and somehow bail their chestnuts out of the fire if the facts or allegations of snooping without the legally expected formalities (independent oversight) ever leaked out. There are many bases for reasonably concluding the company would be protected "enough," using all the legal arguments that the administration was willing to mount for acting outside the statutory boundaries, e.g., inherent foreign intelligence gathering authority under Article II, or FISA + AUMF, or just plain assertion of state secret.

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I suppose there is an argument about what constitutes "blatantly illegal," but I seriously doubt a telecom lawyer would conclude that snoop orders styled to execute the TSP were in compliance with 18 USC 2511 / 50 USC 1801 et seq.
12.21.2007 1:13pm
anomie:
I agree that the suits are going nowhere, either via assertion of state secret, or via some form of statutory amnesty or indemnification that has the ultimate dropping of the issue happen without disclosing more than has already been disclosed.

There is another alternative available. Whether it is likely to be taken is, of course, a different question.
Following is a summary of Senator Feinstein's amendment:

The Feinstein amendment to S. 2248, the FISA bill, would put the question of telecommunication companies' immunity before the FISA Court.

The FISA Court, acting en banc, would initiate a three-part review:

First, the Court would determine whether the letters sent by the government to the telecommunications companies met the conditions of the law. Specifically, the government must show that its letters comport to Title 18, Section 2511, which clearly states that a certification from the government is required in cases where there is no court order. Under this law, the government must certify in writing that all statutory requirements for the company's assistance have been met;

Second, the FISA Court would examine whether companies that provided assistance to the government did so in good faith and pursuant to demonstrate a reasonable belief that its compliance was legal;

Third, the FISA Court must determine whether the telecommunications company actually provided assistance.

* If the FISA Court determines that the company did not provide assistance, or that the assistance provided met the legal requirements or was reasonable and in good faith, the immunity provision would apply.

* If the FISA Court determines that none of these requirements were met, immunity would not be granted.


12.21.2007 1:15pm
cboldt (mail):
I don't think Feinstein's proposal will fly. But if it does, I put it in the same bucket as "cases disposed of without making any more public disclosure than has already been made."
.
And looking at Feinstein's proposal, it does not require a public statement by FISC as to whether or not thew snooping activity was in compliance with 18 USC 2511 + FISA. "Good faith" is a substitute for following the law.
12.21.2007 1:23pm
anomie:
I agree that the details of Feinstein's amendment may not provide all that one could want, but I'm interested in others' opinions on the appropriateness and advisability of the basic idea of the FISC holding ex parte, in camera hearings to determine the facts covered by state secrets claims while leaving the remainder of the issues for other courts to hear and decide.
12.21.2007 1:28pm
OrinKerr:
cboldt,

Good faith belief is not required for the TSP; that's only an issue with the call records program.
12.21.2007 1:29pm
cboldt (mail):
-- Good faith belief is not required for the TSP; that's only an issue with the call records program. --

.

Thanks. I wasn't paying close attention, to be sure.

.

I think what you're saying is there is no statutory good faith defense to turning over call contents under the aegis of the TSP, but there is a statutory good faith defense to turning over call logs, with good faith turning on belief in the presence of an "emergency."

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FWIW, we are currently under national emergency as a matter of EO (which AFAIK has the force of law), as regards potential terrorist attack.

.

[1 year] Continuation of the National Emergency - Sept 20, 2007.
12.21.2007 1:49pm
Elliot Reed (mail):
Isn't the elephant in the room here that without immunity, there remains a possibility that plaintiffs' lawyers in one of these cases will get their hands on, and publicize, the administration's communications with the telecoms? I doubt Bush's willingness to go to the mat for retroactive immunity for the telcos (he's said he'll veto any version of the bill that doesn't include retroactive immunity) is because they have exceptional pull with the administration. There's something potentially discoverable that he really doesn't want us to see, either because it's important for national security reasons (doubtful) or because it would reveal illegal and/or politically damaging conduct by the administration (more likely).
12.21.2007 3:09pm
Oren:
FWIW, we are currently under national emergency as a matter of EO (which AFAIK has the force of law), as regards potential terrorist attack.
The US has been in a National Emergency continuously since the Great Depression. In the words of TPB "I do not think that word means what you think it meants".
12.21.2007 3:15pm
Just Dropping By (mail):
To be clear, Prof. Kerr, I am accusing AT&T, Verizon, and their lobbyists and paid politicians of crony capitalism, not you. And, frankly, I'm not sure what you would consider to be an "actual argument" since I already presented one that any litigator can immediately grasp: the mere fact that a party can artfully draft its answer to a complaint to contain a facially non-frivolous affirmative defense (here, the state secrets doctrine) cannot support jumping to the conclusion that the defendant is guaranteed to prevail in the end so the litigation should be immediately dismissed. A defendant who filed a Rule 12(b)(6) motion that stated, "I can't actually meet the Rule 12(b)(6) standard, but I'm sure I'll win on summary judgment because I'll invoke an evidentiary privilege that will prevent the plaintiffs from obtaining a key piece of evidence, so the court should dismiss the case now anyway," which is what your argument amounts to, would be lucky to escape being sanctioned by even the most pro-defense judge. Put another way, your argument is the equivalent of if, after DOJ filed its antitrust case against Microsoft, you had declared, "Antitrust cases are really hard to win and they overwhelmingly get thrown out on summary judgment, so Congress should immunize Microsoft from any Sherman Act liability so it doesn't have to incur the cost of actually rebutting the DOJ's case." Drafting a statute to permit that on a case-by-case basis amounts to individualized retroactive tort reform for parties able to throw enough money at lobbyists and politicians. That is certainly constitutional, but it offends any notion of "equality under the law". Putting it another way, if your employer fired you and then, after you filed a wrongful termination/breach of contract claim (assuming you have tenure), your employer went to the state legislature and said, "We are probably going to win this case, but save us the cost of litigating the matter by enacting a statute declaring retroactively that we have immunity from all breach of contract claims filed prior to today," would you not find that mildly troubling in terms of its implication for the justice system even if it is clearly constitutionally protected petitioning for government action? I assume you will now protest that in my latter example your employer is unlikely to win in court and therefore it lacks the pseudo-judicial efficiency argument you make, but since there is no 100% guarantee AT&T and Verizon will win via assertion of the state secrets doctrine, at precisely what level of likelihood does a defendant's chance of prevailing in litigation have to reach before it becomes in your view morally entitled to be immunized so as to avoid the cost of litigation?

If you don't believe that public policy arguments constitute "actual arguments," I'll point out that since privileges and other rules to exclude evidence are usually narrowly applied, the burden would seem to be on you to explain how it is that private parties can rely on the government's assertion of the state secrets doctrine to shield them from liability when, as far as I am aware, every successful application of the state secrets doctrine in the past has either been in litigation directly against the Federal government/government employees/officers or, IIRC, in private litigation concerning subpoenas relating to information actually held by the Federal government. If you can point to a single case which states that a wholly private party can refuse to produce evidence in discovery from its own files simply because the information in the files was generated based on what the private party was told to do by a government official, then I'll agree that you've made a prima facie case for why AT&T and Verizon are likely to prevail.
12.21.2007 3:32pm
cboldt (mail):
-- The US has been in a National Emergency continuously since the Great Depression. In the words of TPB "I do not think that word means what you think it meants". --
.

Heheheh. I know. The EO that I cited relates only to financial transactions.

.

I don't think the EO that authorized the TSP has been declassified.

.

My general point was that the meaning of "emergency" can be adopted to suit the desired legal outcome. In this case, the interests of the telecoms and the interests of the government are the same - no disclosure, no liability. IOW, they won't argue over the meaning of "emergency."
12.21.2007 3:38pm
Oren:
No, you can have a subjective belief that is objectively unreasonable. Happens all the time, even on this blog.
If this is indeed true then "good faith" standard is totally vacuous. How does one litigate such a belief? Brain Scans?

Common sense would dictate that if no reasonable person could come to a conclusion then no reasonable person could hold that belief in good faith. This is perhaps quite a bit weaker of a statement than I made earlier (for instance, there are plenty of beliefs that I believe are objectively unreasonable but not so unreasonable that no reasonable person could believe them).
12.21.2007 3:53pm
Tugh (mail):
Just Dropping By,

I agree with everything you say in your 3:32pm post.
The whole notion of affording immunity from civil lawsuits to private parties just because they MAY win is very offensive to the notion of rule of law. It is selective justice at its worst.
12.21.2007 4:00pm
absalom:
I think the impact of an immunity deal would be to (a) cut short TSP litigation that won't be going anywhere anyway

Orin, that seems questionable at best. As Marty Lederman has explained, one or more of the certifications for TSP came from White House Counsel Alberto Gonzales during the Comey/OLC rebellion:
it appears that the certifications issued during that period were manifestly inadequate under the statute, and the absence of an AG signature should have put the telecoms on clear notice that something smelled to high heaven.
Marty's right. If there's a justification for obeying a facially defective certification, it needs to be reviewed by a judge, not swept under the immunity carpet.
12.21.2007 4:08pm
OrinKerr:
Absalom,

I recognize Marty's equitable argument, but is there a "should have put the telecoms on clear notice that something smelled to high heaven" legal standard in Title III? How does that impact the application of the exception?
12.21.2007 4:12pm
OrinKerr:
Just Dropping By,

You have badly misunderstand my position. The argument of my post is that the effect of the immunity is narrower than many believe, and I take no position on whether the immunity agreement is a good or bad idea. Oddly, I believe you characterize my argument as being that "defendant is guaranteed to prevail in the end so the litigation should be immediately dismissed." I make no such argument, however, or anything really close to it.

Also, as you are a litigator, let me add a piece of writing advice: Paragraph breaks are your friend.
12.21.2007 4:21pm
absalom:
Orin, I think you're being a tad glib. Marty's "high heaven" language is a rhetorical flourish that shouldn't obscure the following fact: The relevant statute (18 USC 2511(2)(a)(ii)(B)) lists the AG, and only the AG, as an official empowered to make a valid certification. Having a certification from White House Counsel pretty clearly wouldn't justify compliance absent some extraordinary -- and heretofore unrevealed -- justification.

If that's in fact what happened, granting retroactive immunity doesn't merely hasten an inevitable outcome favoring the telecoms, as you seem to suggest.
12.21.2007 4:29pm
OrinKerr:
Absalom writes: "The relevant statute (18 USC 2511(2)(a)(ii)(B)) lists the AG, and only the AG, as an official empowered to make a valid certification."

I don't specifically recall Marty's post, but that's not quite correct. Here's the language from 18 USC 2511(2)(a)(ii)(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"

18 U.S.C. 2518(7) specifies the following people: "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".

Also, do we know if the certifications stated that they only had effect during a particular window and were void afterwards? Or was the renewal a matter of policy?
12.21.2007 4:39pm
cboldt (mail):
-- The argument of my post is that the effect of the immunity is narrower than many believe --
.

If my reading is correct, the argument is that as to the TSP, the telcos have "immunity" because they have certifications from the AG. In that case, it's not really "immunity," they haven't broken the law, and they have the paperwork to prove it.

.

A "counterargument" is that in some cases, there is an absence of AG certification. Or at least, the telcos should be made to show the certifications. To date, this has been precluded as the government asserts state secret, even to show the existence of a certification would compromise state secret.

.

"Counterargument" in scare quotes, because having the cases dismissed on an assertion of state secret has the same courtroom effect as having the cases dismissed by virtue of statutory removal. IN other words, the statutory immunity doesn't have an "effect" at all, because the outcome under state secret is the same.

.

Then, as to immunity from suits complaining about transfer of call logs, certifications of the AG don't serve to prove legality, so the telecoms need a different widget to get out of court. In these cases, statutory immunity cuts off an inquiry into the telcos' "good faith."

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And, as you note in your update, state secrets can cut either class of case off at the knees.

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My overarching point of view is that this is a battle between statutory immunity and an assertion of state secret. If one doesn't play, the other one will. Whichever one plays, the cases are dismissed. It's not that there is little difference as to outcome in court, there is NO difference.

.

Unless the cases last long enough for a future administration to drop the state secret defense, or unless a court has a need to, and rejects the state secrets defense. Yet another possibility is the have the cases dismissed for want of standing.

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The commonality in "statutory immunity," "successful state secrets," and "lack of standing" is that the government does not disclose any more than it already has.
12.21.2007 4:48pm
anomie:
I take no position on whether the immunity agreement is a good or bad idea.

Why not?

Even if we were to accept your proposition that the outcome the telecoms will see will be the same regardless of whether court adjudication or legislative immunization are the means used to arrive at those ends, won't public perception of justice and the rule of law be very different depending on the means to those ends? All else will not be equal if the telecoms never face their day in court. Are the efficiency benefits of legislated immunity so great and the damage to the public perception of the law so small as to not warrant any commentary on their balance?
12.21.2007 4:58pm
cboldt (mail):
My read of the 18 USC 2511(2)(a)(ii)(B) certification language is that it is generic, pointing to other statutes for further definition. The signatures authorizing warrantless surveillance under FISA are limited (e.g., doesn't include state actors), and the Warrantless surveillance authorized under 18 USC 2518(7) is problematic - not for the persons it authorizes to initiate such surveillance, but for the mandatory follow-on actions.
.

[Telco] may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.
12.21.2007 5:14pm
absalom:
18 U.S.C. 2518(7) specifies the following people: "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".

Orin, even assuming that the cross-reference to 2518(7) is meant to incorporate not only high-level DOJ officials but also the "specially designated ILEOs," are you claiming that White House Counsel is an "investigative or law enforcement officer"?

If not, then we're back to the fundamental questions: under what other authority could WHC issue a valid certification? and if the certification was facially invalid, what basis -- in policy or law -- is there for immunizing the telecoms?

Also, do we know if the certifications stated that they only had effect during a particular window and were void afterwards? Or was the renewal a matter of policy?

I think we can reasonably assume that each certification was strictly time-limited. That, it seems, is the only explanation for sending Card &Gonzales to the Ashcroft hospital room: it was a matter of great legal urgency created by Comey's refusal to reauthorize, and not driven by "a matter of policy."
12.21.2007 5:45pm
MarkField (mail):

I recognize Marty's equitable argument, but is there a "should have put the telecoms on clear notice that something smelled to high heaven" legal standard in Title III? How does that impact the application of the exception?


To answer a question with a question, why should Congress, rather than the judiciary, be the appropriate body to resolve this issue?
12.21.2007 7:11pm
anomie:
Or why should the Executive, through the assertion of state secrets, be the appropriate body to resolve this issue?

Merely describing that all three branches of government could, and probably even would, reach the same outcome -- at least given a presumed resolution of certain disputed questions of fact and considered strictly from the telecoms' perspective -- hardly seems of much importance given the weight of the elephantine question in the room: Who should resolve this issue of law?
12.21.2007 8:07pm
West:

Orin, even assuming that the cross-reference to 2518(7) is meant to incorporate not only high-level DOJ officials but also the "specially designated ILEOs," are you claiming that White House Counsel is an "investigative or law enforcement officer"?

If not, then we're back to the fundamental questions: under what other authority could WHC issue a valid certification? and if the certification was facially invalid, what basis — in policy or law — is there for immunizing the telecoms?


Hmm. You appear to have made quite the leap to conclusions here. Most likely, you took what you read at one of Lederman's links to be true. In fact, the report says that one of the letters (that covered under 60 days) stated that WHC found the activities to be legal; all of the other letters stated that the AG found the activities to be legal. It did not say who signed those of the statements. As we've established, there are more than a few individuals with signature authority for these documents. So we do not know, in fact, that the WHC ever signed ANY of these letters. I would expect they were being signed by someone in the NSA, since they were the arm gathering the data.

Recall that the signer is attesting that the statements of fact required by the statue is true. The letter does not need the signature of each of the individuals who may have made this assurance to the signer. So neither the AG nor the WHC, in the single case where WHC attested to legality, would have their signatures required on a letter.

Now, you could make an argument that the one letter where the WHC attested to the legality is the weak link. The letters are supposed to carry the assertion that the AG attests to the legality, not the WHC. But I suspect since it was a one-time thing, and that afterwards either the program closed, or the letters again bore the statement that the AG attests to the legality, that this would be easily explained away and would not constitute any real issue.



I think we can reasonably assume that each certification was strictly time-limited. That, it seems, is the only explanation for sending Card &Gonzales to the Ashcroft hospital room: it was a matter of great legal urgency created by Comey's refusal to reauthorize, and not driven by "a matter of policy."


The entire hospital mess was a matter of policy. It was made clear when this episode came up that the President had decided that he would seek the AGs approval of the overall program every X days (45 was it?). There were policy and political urgencies to get the AG to sign, but the President had the ability to simply change his policy.

However, there is tangential relevance here. Most likely the statement from the AG was needed in order for the letters to be accurate, among many other things. I would take it one further, and suggest that not getting this signature is what caused a letter to go out that indicated that WHC attested to legality, instead of the AG.

This is all a big mess, but I think in the end there is no reason to believe that the Telco's weren't acting in good faith with regard to these letters.
12.21.2007 8:16pm
West:

To answer a question with a question, why should Congress, rather than the judiciary, be the appropriate body to resolve this issue?


I'd always rather see Congress fix it's own mistakes, than have the judiciary do it for them.
12.21.2007 8:36pm
MarkField (mail):

I'd always rather see Congress fix it's own mistakes, than have the judiciary do it for them.


This makes no sense. Congress established an immunity condition. The only issue is whether the telecoms satisfied it. There's nothing to correct; what remains is only to determine. That's a job for a judge.
12.21.2007 9:00pm
cboldt (mail):
-- As we've established, there are more than a few individuals with signature authority for these documents. --

.

The universe of authorizing persons is coupled with conditions for undertaking surveillance, and the most common condition is seeking a court order.

.

The universe of statutory authorization absent a court order is pretty small, both as to who can authorize, as well as who can be snooped on.

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The TSP, as defined by the administration, doesn't satisfy the statutory conditions (of FISA) for surveillance without a court order.

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A given snoop under the TSP might, just the same, be constitutional. If so, the (FISA) statutory requirements for authorization are irrelevant. The authority coming not from FISA.

.

But the administration does not want its warrantless snooping policy to air from a judicial proceeding, even if it would prevail on constitutional grounds. It has only a few ways to create that end. One is to assert state secret, another is to pressure Congress to renege on the civil (statutory) remedy it crafted in the late 1970's. A third possibility is that the courts take it upon themselves to find a lack of standing.
12.21.2007 9:59pm
cboldt (mail):
-- To answer a question with a question, why should Congress, rather than the judiciary, be the appropriate body to resolve this issue? --

.

The reason for putting the burden on Congress is stated by proponents of FISA "modernization." To wit, FISA (and Congress) didn't keep up with technology, and as a result of Congressional error, FISA encroached on Title II power to unfettered obtaining of foreign intelligence information. All the government snooping that has taken place is legal as a matter of con law, even if the snooping is not approved via court order.

.

But if the snooping is constitutional, and FISA therefore is an unconstitutional encroachment on the executive, this too could be affirmed by a court, if put to a court test.

.

The argument for avoiding the court test is "state secret." That disclosure of the government's snooping policy will harm the state. This argument was active during the Church hearings too. There was spirited objection to airing the extent of the snooping policy.

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I think it's obvious that a Congressional grant of amnesty will work a bypass of separation of powers vis-a-vis government snooping policy. But so does a court acceptance of state secret (see Reynolds for a small scale "injustice" in this regard).
12.21.2007 10:13pm
West:

This makes no sense. Congress established an immunity condition. The only issue is whether the telecoms satisfied it. There's nothing to correct; what remains is only to determine. That's a job for a judge.


I think the conditions are as clear as they need to be, but if there is this much discussion, then perhaps they are not. In cases like this I always prefer the legislature provide the most clear and precise language possible in order to permit the smooth flow of things, without needing to go to the judiciary except in extreme cases.

If the legislature could have made it clearer, but failed to do so, then I see it as a mistake. And if a mistake was made, I'd prefer to see them fix it as opposed to tossing it over the wall and letting the judiciary try to fix it.
12.21.2007 10:57pm
MarkField (mail):

The reason for putting the burden on Congress is stated by proponents of FISA "modernization." To wit, FISA (and Congress) didn't keep up with technology, and as a result of Congressional error, FISA encroached on Title II power to unfettered obtaining of foreign intelligence information. All the government snooping that has taken place is legal as a matter of con law, even if the snooping is not approved via court order.


I agree that these arguments have been made. I don't see what they have to do with this case. If the telecoms want to defend on immunity grounds, they have to meet the statutory requirements. Period. If they want to defend on Constitutional grounds, the immunity issue is irrelevant.
12.21.2007 11:00pm
MarkField (mail):

If the legislature could have made it clearer, but failed to do so, then I see it as a mistake. And if a mistake was made, I'd prefer to see them fix it as opposed to tossing it over the wall and letting the judiciary try to fix it.


This is not a case of "could have made it [the test] clearer". This is a case of "did they or didn't they meet the [clear] test". Violating the separation of powers by having Congress decide the issue takes us from a government of laws to one of men (to paraphrase John Adams).
12.21.2007 11:05pm
cboldt (mail):
-- If the telecoms want to defend on immunity [didn't break the statute] grounds, they have to meet the statutory requirements. Period. If they want to defend on Constitutional grounds, the immunity issue is irrelevant. --

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Note my "didn't break the statute" insert, placed in order to distinguish from post-facto statutory immunity/amnesty. I agree with your point, but note that the telecoms don't have Article II powers to assert, so for them, the "it's constitutional" argument is a different sort of reach, compared with the president making the same reach.

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In this case, the government (administration) and telecoms desire the same outcome - to have the issue removed from the court, and from the public eye. So far, the administration has been shouldering the burden, asserting state secret as necessary to prevent the telecoms from providing evidence.

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I assume the telecoms are indifferent as between a successful assertion of state secret and having the cases dismissed as a result of Congress telling the courts to butt out. I think they'd be just as happy with the courts declaring that the plaintiffs have no standing.

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As I see it, the telecoms are playing the part of a pawn while the various branches of government sort out which branch will be tasked with justifying keeping snooping policy a matter of secret. The telecoms keep mum, per their government masters.
12.21.2007 11:25pm
absalom:
West:
You appear to have made quite the leap to conclusions here. Most likely, you took what you read at one of Lederman's links to be true. In fact, the report says that one of the letters (that covered under 60 days) stated that WHC found the activities to be legal; all of the other letters stated that the AG found the activities to be legal. It did not say who signed those of [sic] the statements.

Let's take a look at who's making the leap here, shall we?

First, here's the relevant passage from the 2007 SSCI report:
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.
Now, it's true that this doesn't literally declare who actually signed the letters. However, the applicable statute requires
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
This doesn't allow a letter from Mr Subaltern saying "the AG has certified etc."; on the contrary, the writing must be "by" an authorized official.

As we've established, there are more than a few individuals with signature authority for these documents. So we do not know, in fact, that the WHC ever signed ANY of these letters. I would expect they were being signed by someone in the NSA, since they were the arm gathering the data.

Since nobody in the NSA is "a person specified in section 2518 (7) of this title or the Attorney General of the United States" (see earlier posts), that would make each and every certification facially invalid.

Nice work, West. I'm only asserting that one letter (from WHC) was invalid. If you really want to insist that they were all defective, be my guest, although it seems like overkill (and irrelevant in any event, given that we have at least one instance where the telecoms had no business complying).

There were policy and political urgencies to get the AG to sign, but the President had the ability to simply change his policy.

The President's asserted ability to change his policy is beside the point unless he also had the power of time-travel. If the earlier certifications were on their face time-limited, then a new certification was required as a matter of law for the program to continue. Unfortunately for the White House, James Comey (and OLC under Jack Goldsmith) unexpectedly showed some spine and refused to issue such a new certification.

Most likely the statement from the AG was needed in order for the letters to be accurate, among many other things. I would take it one further, and suggest that not getting this signature is what caused a letter to go out that indicated that WHC attested to legality, instead of the AG.

As noted above, the letters didn't merely need to recite the AG's approval: they had to be from the AG or another statutorily authorized official. And try as you may, there's just no way to make the White House Counsel, or anyone at NSA, such an authorized official.
12.22.2007 12:33am
West:

This doesn't allow a letter from Mr Subaltern saying "the AG has certified etc."; on the contrary, the writing must be "by" an authorized official.


Sure it does, if he was delegated power per:


18 U.S.C. 2518(7) specifies the following people: "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".


There could literally be hundreds of people who could have been specially designated. That means someone in the NSA certainly could be signing the letters, and I would expect they would be, since they are the ones doing the investigation.



Nice work, West. I'm only asserting that one letter (from WHC) was invalid. If you really want to insist that they were all defective, be my guest, although it seems like overkill (and irrelevant in any event, given that we have at least one instance where the telecoms had no business complying).


So basically, you agree that only one letter may be suspect, which is the one that states the WHC attests to legality. As I said, this is one that could be a weak link. But as I also said, since it was either the last letter (the program closed) or it was followed by more letters stating the AG attested to legality (the program changed), then it's not going to be enough to create any issue.


The President's asserted ability to change his policy is beside the point unless he also had the power of time-travel. If the earlier certifications were on their face time-limited, then a new certification was required as a matter of law for the program to continue. Unfortunately for the White House, James Comey (and OLC under Jack Goldsmith) unexpectedly showed some spine and refused to issue such a new certification.


On the issue of the program, the president had made a decision to get the AG to approve it every X days. This was a decision he could change at a moments notice, without needing to time travel. Again, I think once he decided he wanted the AG's approval it would have created a political issue if he suddenly said "I don't need it" when that approval was withheld. But it was entirely within the President's ability to simply say he didn't need it at any time.

As for Comey, you're seeing what you want to see. I have no doubt that most of the things Comey did sign off on would probably make most of his converts puke on themselves. It's most likely that he and Goldsmith were reacting to a few minor quibbles over specific things the FBI were probably involved with. Mueller met with the President and the program was changed. My understanding is Comey then signed off on the program again. I doubt the majority of the program, especially the NSA parts, changed at all.


As noted above, the letters didn't merely need to recite the AG's approval: they had to be from the AG or another statutorily authorized official. And try as you may, there's just no way to make the White House Counsel, or anyone at NSA, such an authorized official.


I'll quote it again:


18 U.S.C. 2518(7) specifies the following people: "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".


There could be hundreds of "specially designated" people running around. I would expect this, and I think it was written this way on purpose. This is how things scale. I would not be surprised at all to find out that every government intelligence or law enforcement agency has 4 or 5 people with this special designation. Those are the people I would expect are signing the letters. And yes, this includes the NSA.

Now, I agree the WHC would not be specially designated. But no evidence exists that WHC ever signed a letter. Instead, according to the report, one letter had said the WHC attested to legality instead of the AG. You keep assuming the WHC signed it, and there's just no evidence to support that (nor any reason to think it would ever happen).
12.22.2007 10:34am
cboldt (mail):
I'll quote it again:

18 U.S.C. 2518(7) specifies the following people: [list snipped]

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As the saying goes, "Read a little further."
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Those people have the authority to seek a court order, and the very statute you cite expresses the follow-up action in case a court order is not obtained.
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It does permit snooping without a warrant, but for a limited period of time [48 hours], and ONLY on belief that a court order will issue and on the condition that a court order is sought.
12.22.2007 10:48am
MarkField (mail):

Note my "didn't break the statute" insert, placed in order to distinguish from post-facto statutory immunity/amnesty.


Fair enough.
12.22.2007 10:49am
anomie:
So basically, you agree that only one letter may be suspect, which is the one that states the WHC attests to legality.

How did "at least one" become "only one"?
12.22.2007 10:55am
West:

Those people have the authority to seek a court order, and the very statute you cite expresses the follow-up action in case a court order is not obtained.
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It does permit snooping without a warrant, but for a limited period of time [48 hours], and ONLY on belief that a court order will issue and on the condition that a court order is sought.


Perhaps there is some confusion. I have been discussing 18 USC 2511(2)(a)(ii)(B), which by my reading does permit a letter (certification) to authorize discussed activities,
so long as the letter (certification) makes the needed statements. The references to 18 USC 2518(7) are only because it is referenced by the aforementioned to list the authorized individuals. I do not believe, by my reading, that any other portions of 18 USC 2518(7) apply to the aforementioned, except for the stated portion that provides the list of individuals.
12.22.2007 4:11pm
absalom:
West takes the bait:

I'll quote it again:

18 U.S.C. 2518(7) specifies the following people: "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".

There could be hundreds of "specially designated" people running around.


Even assuming that the cross-reference to 2518(7) is meant to include "any investigative or law enforcement officer, specially designated" (as opposed, say, to only the AG, DAG, and other enumerated officials), you have a small problem.

You see, "investigative or law enforcement officer" is a defined term:
“Investigative or law enforcement officer” means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses
18 USC 2510(7)

That means criminal investigative agents and prosecutors. It doesn't include the White House Counsel, and it doesn't include anybody at the NSA, all of whom -- per your posts above -- you seem to think not only can but actually did make the relevant certifications.

Curious, isn't it, that the SSCI report refers only to the AG and White House Counsel, but not to any of these other purported persons whose existence (and concededly legally insufficient certification) you posit?
12.22.2007 4:40pm
cboldt (mail):
-- Perhaps there is some confusion. --
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There is no question there is some confusion.

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-- 18 USC 2511(2)(a)(ii)(B), which by my reading does permit a letter (certification) to authorize discussed activities, so long as the letter (certification) makes the needed statements. --

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True enough. But you need to go a bit further and get into the nitty gritty of the contents of "the" letter (certification), who is authorized to craft "the" letter (certification), and any statutory conditions that attach to issuing "the" letter (certification).

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18 USC 2511(2)(a)(ii)(B) covers more than one type of certification, and you are conflating the authority to issue run of the mill "lets get a warrant" certifications prepared by state investigators, FBI and others (where the 18 USC certifications ALWAYS contemplate judicial sign off), with the [statutorily] narrow and specialized conditions for issuing a certification WITHOUT obtaining a court order.

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Snooping without a court order is described in the FISA statutes, at 50 USC. AFAIK, this is the ONLY place, in a statute, that describes a process for snooping without ever obtaining a court order.

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The administration admits it was snooping for years without a court order. It has fronted various legal rationales for why this is "within statutory bounds," primarily that the AUMF constitutes the statutory modification recited in FISA.

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That "AUMF + FISA" argument stinks too, but that's a whole 'nother discussion.
12.22.2007 5:04pm
cboldt (mail):
18 USC 2511(2)(a)(ii)(B) says the telecom is acting legally, if it has sufficient certification.
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Sometimes that sufficient certification comes from a state investigator (i.e., not a Fed, certainly not the AG).
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Sometimes (FISA), the statute recites that sufficient authority for the certification is limited to a narrow group of people.
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50 USC 1802 (a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath ...

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No lengthy list of persons having the authority to prepare the certification, only two named offices, president, and AG. And even then, FISA provides that the FISC obtain a copy of the certification, even though it is not asked to issue a court order.
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50 USC 1804 describes the procedure for obtaining a court order from the FISC.
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(a) Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include ...
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application

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No lengthy list of persons having the statutory power to authorize the surveillance, even though other federal officers have the authority to apply for the court order, the request must be approved by the AG.
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A result of adopting the statutory construction that you've advocated would be that any po-dunk local police authority could conduct warrantless surveillance. No need for the AG to certify the snoop order that comprise the TSP, just get the Washington DC Chief of Police to sign the certification.
12.22.2007 5:37pm
West:

That means criminal investigative agents and prosecutors. It doesn't include the White House Counsel, and it doesn't include anybody at the NSA, all of whom -- perin your posts above -- you seem to think not only can but actually did make the relevant certifications.


I've never said the WHC signed anything. They did, per the report, attest to legality once, but that is all. You may believe that is the same as signing; I do not.

As to the NSA; there are NSA personnel, both non-military and military, who meet the description you quoted from 2510. And I would expect those individuals to sign the letters. I'm at a loss why you would think a large intelligence agency would not have people who fit this description, especially when anything having to do with electronic surveillance of any kind would be written with a mind towards the premier agency of same.



Curious, isn't it, that the SSCI report refers only to the AG and White House Counsel, but not to any of these other purported persons whose existence (and concededly legally insufficient certification) you posit?


I don't think it's curious at all. I think it's a good sign that the SSCI didn't find an issue with whoever signed the letters, regardless of who they were. I also think it's a good sign that even though I think that one letter where the WHC made the attestation of legality may have been questionable, the SSCI report doesn't call it out as a big foul.
12.22.2007 5:52pm
West:

True enough. But you need to go a bit further and get into the nitty gritty of the contents of "the" letter (certification), who is authorized to craft "the" letter (certification), and any statutory conditions that attach to issuing "the" letter (certification).


Well, therein lies the rub. We don't have one of these letters to look at. We don't know specifically what it says, or who signed it. Clearly, there are differing opinions on who may have, but that's all educated guesses.



18 USC 2511(2)(a)(ii)(B) covers more than one type of certification, and you are conflating the authority to issue run of the mill "lets get a warrant" certifications prepared by state investigators, FBI and others (where the 18 USC certifications ALWAYS contemplate judicial sign off), with the [statutorily] narrow and specialized conditions for issuing a certification WITHOUT obtaining a court order.


It may cover more than one type, but I'm not dicussing anything other than these specific letters. If these letters were authorized under 18 USC 2511(2)(a)(ii)(B), then the named positions in 18 USC 2518(7) apply. It may have been a mistake on someone's part, but that's how it reads.
12.22.2007 6:05pm
West:

A result of adopting the statutory construction that you've advocated would be that any po-dunk local police authority could conduct warrantless surveillance. No need for the AG to certify the snoop order that comprise the TSP, just get the Washington DC Chief of Police to sign the certification.


Well, I think it would be the DC DA, but I see your point. I do think you make an excellent case at this juncture that perhaps 2511 is not the controlling statute. But based on the administrations general distaste for FISA, I'm not sure it would be that either. But then what? I don't have that answer at this time. Well argued :)
12.22.2007 6:13pm
cboldt (mail):
-- If these letters were authorized under 18 USC 2511(2)(a)(ii)(B) --
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That section gives the telecom the authority to transfer intercepted communications to an authorized government actor, but doesn't lay out all the statutory requirements that constitute "authorized government actor." Adequate certification will have the government actor recite that all the statutory requirements have been met.
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So, what are "all the statutory requirements?" That's why I say one must "read on" in order to understand. The statutory requirements are not uniform across all surveillance orders. Heck, the FISA statutory requirements are in a completely different Title of the US Code.
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There is no need to see any given letter, to discern the statutory schemes that are meant to define the various court-ordered and warrantless snooping practices.
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It's clear to me that you are misreading the statute -- although I have to admit that the statutory language and layout lends itself to misconstruction.
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Find and read the parts of the law that describe the contents of the various certification letters.
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18 USC 2518 describes the process when the object is obtaining evidence for investigation of certain criminal activities.
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50 USC 1804 describes the application for court order, when the object is electronic surveillance for foreign intelligence purposes.
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50 USC 1802 describes the circumstances where (as a matter of statute) snooping for foreign intelligence may be undertaken without a court order.
12.22.2007 6:34pm
cboldt (mail):
-- perhaps 2511 is not the controlling statute. But based on the administrations general distaste for FISA, I'm not sure it would be that either. But then what? I don't have that answer at this time --

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The administration's best argument is that FISA is an unconstitutional encumbrance on a power reserved to the executive under the constitution.

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This argument is particularly clear when the surveillance is, for example, of foreign-to-foreign communications. If Congress passed a law that said "you need a court order to intercept communications between Iraq and Afghanistan," not only would the statute be rendered invalid, but I doubt any court would find itself in a position to be able to issue an order with such extra-territorial effect.

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The argument that the government has a right to surveil without a warrant is harder to win when one side of the communication is in the US, which is what the TSP is defined as. And harder still (but not impossible) when BOTH ends are in the US.

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Truong and his buddy (Humphrey, IIRC) were surveilled w/o a warrant (for about a year), surveilled in the US, and the evidence was admissible in a criminal trial. Granted, this was before there was a FISA statute, but the broader point is that the snoop was NOT unconstitutional even though it was undertaken w/o a warrant.
12.22.2007 6:57pm
Cornellian (mail):
Nothing in the Constitution says the President's jurisdiction is world-wide while Congress's stops at the border.
12.22.2007 8:27pm
David M. Nieporent (www):
This is not a case of "could have made it [the test] clearer". This is a case of "did they or didn't they meet the [clear] test". Violating the separation of powers by having Congress decide the issue takes us from a government of laws to one of men (to paraphrase John Adams).
I don't see how it "violates the separation of powers" to grant immunity; granting immunity isn't a judicial power at all. If Congress made a formal factual determination that the telcos had satisfied the immunity criteria in the past, that might violate the s.o.p., but I don't see how granting immunity would. Whether the telcos should have immunity is a policy decision within the purview of Congress.
12.23.2007 3:45am
MarkField (mail):

I don't see how it "violates the separation of powers" to grant immunity; granting immunity isn't a judicial power at all.


It violates the separation of powers because Congress is granting immunity because it believes that the telecoms met the statutory requirements. That's a judicial determination.

If Congress believes that the telecoms did NOT meet the previous statutory requirements and now wants to change those requirements going forward, that's within the legislative power. Changing or defining the past is not; that's left to the courts and/or the President (pardon power).
12.23.2007 11:16am
David M. Nieporent (www):
Mark, that seems like a pretty subtle distinction. And surely the issue of whether it's a violation of separation of powers can't turn on the subjective intent of Congress, can it?


(Certainly some state courts have held that even addressing these sorts of policy question is actually a violation of the separation of powers; various courts have struck down state tort reform measures on the grounds that their legislatures don't have the authority to, e.g., cap damages or require affidavits of merit or the like. I believe that to be completely wrong, but at least it would be consistent. But I don't see how your argument is tenable.)
12.23.2007 11:56am
MarkField (mail):

Mark, that seems like a pretty subtle distinction. And surely the issue of whether it's a violation of separation of powers can't turn on the subjective intent of Congress, can it?


I don't think it's particularly subtle to say that legislation is supposed to operate prospectively. In this case, there are only two possibilities for how Congress can justify immunity, and I listed both of them. If this were a situation with many options, there might be room for argument, but here, Congress is essentially claiming the power to find facts (or law) about past actions. That's just not its job.
12.23.2007 3:38pm
cboldt (mail):
-- If Congress believes that the telecoms did NOT meet the previous statutory requirements and now wants to change those requirements going forward, that's within the legislative power. --

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I'd say "that depends." If Congress (next month) passes a law that mirrors SCOTUS's decision in United States 277 U.S. 438 (1928) [wiretapping is not a search, hence no wiretapping can be a fourth amendment violation], it would get the telecoms off the hook, but might represent legislation that impermissibly encroaches on the fourth amendment.

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The difficulty in piercing secret surveillance is that a Court requires evidence of a specific violation and absence of "state secret." The administration's admission of snooping outside of the structures of FISA and other wiretapping statutes doesn't provide enough information to create a specific plaintiff, and even if a court were inclined to take the generic case (somehow manufacture standing), the administration can shut down the inquiry by asserting "state secret."
12.23.2007 7:21pm
cboldt (mail):
My error in cut and paste, at least I had the volume/page cite to Olmsted. Sorry about that.
12.23.2007 7:22pm