Telecom Companies Seek Retroactive Immunity

kidcharles writes "Newsweek reports that a secretive lobbying campaign has been launched by telecommunications companies who are seeking retroactive immunity from private lawsuits over their cooperation with the NSA in the so-called 'terrorist surveillance program.' Director of National Intelligence Mike McConnell has claimed that lawsuits could 'bankrupt these companies.' The Electronic Frontier Foundation has filed a lawsuit against AT&T over their cooperation in the domestic spying program. EFF legal director Cindy Cohen said of the lobbying campaign, 'They are trying to completely immunize this [the surveillance program] from any kind of judicial review. I find it a little shocking that Congress would participate in the covering up of what has been going on.'"

Corperate responsibility

[corsec67]

What would happen to any other group of people that committed large-scale spying on the people of the US?

Why should corperations be free from punishment for committing crimes, especially if it is in association with a branch of the government?

Ex Post Facto laws unconstituional?

[lawpoop]

Excuse me, but aren't ex post facto laws specifically forbidden by the constitution?

Article 1, Section 9 [wikisource.org]:

No Bill of Attainder or ex post facto Law shall be passed.

My understanding is that an ex post facto law works both ways: You can't make illegal activities that were legal in the past; nor can you make legal activities that were illegal in the past. In other words, you can't change the legal status of actions in the past. [wikipedia.org]

Re:Not quite

[fangorious]

Qwest said no.

Re:Darn...

[DavidTC]

It's not even the constitution they need to understand. It's the laws themselves.

What's interesting is that not only was the entire program illegal, but they had the AG sign off on it claiming it was legal, every 45 days, so they could claim they were following the law. The law actually only allows the AG to sign of on wiretapping if the AG asserts that no Americans will be tapped, like they're bugging the Chinese embassy or something. But the AG illegal signed off on the tapping anyway, giving himself quite a lot of civil liability. This was, of course, still illegal, it's not 'The AG signs off on any wiretapping, then it's legal', it's 'The AG signs off on wiretapping and make a specific claim, under threat of perjury, that X is true, then it's legal.', which he did not.

But the telecoms could at least pretend they were following the law. If anyone asked, the had the AG on record that the law was being followed, and anyone asking would just assume that by that they meant the specific exception under the law, not the words 'Do it.' and a signature. They got that every 45 days.

But then Comey, acting AG, refused to sign off on it. There's an interesting theory that Rumsfeld couldn't, for some reason, couldn't stop authorizing the program, (Perhaps blackmail?) so deliberately rendered himself unable to be AG during a time when the papers had to be signed. (Otherwise, it's hard to figure out why he didn't just re-authorize it in advance. It had to be every 45 days, but nothing stopped him from authorizing it at 40 or 35 days for another 45 days if he knew he'd be having surgery. He could have signed the papers right before he temporarily stepped aside as AG. It wasn't emergency surgery, and he knew Comey was opposed to it.)

Whatever the reason, the program was operated for at least 24 hours, maybe up to a week, starting on March 11, 2004, without even a pretend legal justification. The White House said to do it, the AG said no. This was flatly, completely, inarguably illegally. There is absolutely no legal question about it. (1)

That time period is for what the telecoms need immunity. All the other time, they can argue 'Oh, we had the AG's assurance this was legal.', even though they didn't actually, under statue, have it. (He must make specific assurances to them that were not made, and both they and him knew it. They have a damn form letter for it.)

They thought they could weasel out, but, then, at one point in March 2004, they asked for the pretend authorization and didn't get it, and let the government keep operating, thus totally blowing any claims they might have that they were operating legally.

1) And it's fucking insane that Congress hasn't already started impeachments over that specific incidence. Forget arguing the legality of the program when it was signed off on. The President can weasel out of the rest of the time by pointing to the AG's signature, and we can spend years arguing over who did what.

But during that specific time the White House, by itself, ordered the wiretapping, over the objections of the AG. Even if the wiretapping was on foreign nationals and even if that means the president has the inherent power to do it (Neither of which have been demonstrated.), he still has to follow the process laid out in law...if he disapproved of the AG he should have fired him.

Re:Ex Post Facto laws unconstituional?

[sepluv]

There is also the little problem of the Fifth Amendment: "no person shall...be deprived of...property without due process of law". The government are depriving the EFF of their potential property (court damages) retroactively after their case has been filed by declaring the defendant immune from suit. I don't call that "due process of law".

Here is the bill [fas.org] that the Bush administration and telcos are demanding be passed. It retroactively bans any court from hearing any criminal or civil case (including those pending) against "any person" if the Attorney General (or anyone to whom he delegates such power) declares that the defendant's action "is, was, would be, or would have been intended to protect the United States from a terrorist attack".

This effectively gives the Executive the power to halt any court case.

Call the Democratic Leadership on this

[ntk]

The Democrats are rushing this through because they were shocked by the reaction to their passing the Protect America Act last session -- everyone slammed them for giving new surveillance powers to the White House, and so they're scrabbling to fix matters with a new bill.

But they're making the same mistake again. They think no-one cares about immunity. They think it's just a business-as-usual deal.

Please call Nancy Pelosi and Harry Reid and let them know that you're angry at the idea of giving retroactive immunity to the telcos, and by extension, participating in a cover-up of the warrantless wiretapping project. It's not that they're wedded to this idea, it's that they don't think their base or independents care about telco immunity.

Call Rep. Nancy Pelosi -- 202-225-4965
Call Sen. Harry Reid -- 202-224-3542

If you want more facts and arguments, EFF has them here [stopthespying.org].

A couple more notes, for those who like the grubby details. The telcos are pushing for complete retroactive immunity, or alternatively "substitition", by which the government takes the place of the telcos as the defendant in the case. The government has a lot more power to evade the cases by dint of its own in-built immunity to some kinds of prosecution and thus end the cases. A few other groups are suggesting financial caps of penalties, so that the cases could go forward, but if the courts found the telcos guilty, they wouldn't suffer the "crushing liability" they say the cases would cause. (Note that the only way the telcos would *actually* be fined a large amount of money by our case would be if they were guilty of blanket, system-wide surveillance of all their subscribers [eff.org].)

Thanks.

How About This For Shocking???

[Nom du Keyboard]

I find it a little shocking that Congress would participate in the covering up of what has been going on.

I find it a little shocking that a Democratic Congress would participate in the covering up of what has been going on.