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.'"

Why shocking?

Why is anyone surprised Congress would be hushing this up? If the companies get sued for huge sums, then where will they get money to bribe congressmen?

Re:Why shocking?

After all, Congress is more than willing to grant the Bush administration retroactive protection from prosecution as a war criminal [liveleak.com]... why not help his corporate buddies while they're at it?

Re:Why shocking?

OK, the US Congress can protect him from American prosecution for war crimes, but would they alone be able to protect him from international war crimes, say, at the Hague? Now I know the US isn't part of the international criminal court or whatever it's called, but I don't recall Nazi Germany agreeing to any war crimes convention.

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I don't recall Nazi Germany agreeing to any war crimes convention.

Germany had been conquered and had unconditionally surrendered. The war crimes trials were done in lieu of the tradition, said tradition being summary executions.

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Good point. This war in Iran had better go according to plan, for Bushes' sake :(

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This war in Iran had better go according to plan

Why wouldn't it? After all, the Iraq war is going so swimmingly.

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Well, from Bush/Cheney's perspective, it's a giant payoff to their buddies Halliburton, KBR, and Blackwater, along with other military contractors. The international oil companies are going to get their share of Iraqi oil once the region stabilizes. Bush/C

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The international oil companies are going to get their share of Iraqi oil once the region stabilizes. (Emphasis mine)

      Uhh, excuse me but exactly what are you smoking, and can I have some?

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Judging by history, how does a couple thousand sound?

Sounds reasonable ;)

But, they were pumping oil out of Iraq until a few years ago. You don't need to have a violence-free paradise to pump oil, you just need a level of stability.

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Germany had been conquered

Quick - someone tell the Chinese that Bush called them all a bunch of slit-eyed Japs!

Damocles

OK, the US Congress can protect him from American prosecution for war crimes, but would they alone be able to protect him from international war crimes, say, at the Hague?

No, not alone. They'd need some kind of gigantic standing army or something, at their disposal, if they wanted to do that.
Possibly even some kind of deterrent to keep foreign powers at bay. Something big and scary... perhaps an arsenal of scary things mig

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I don't even think it would go that far. The idea of diplomacy means you treat foreign nationals with the same respect that you expect your's to be treated with.

No country would seriously enforce this international court indictment because they would fear

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Big business: "Hey, we need billions of dollars of help right now, so that we can pay you maybe $1,000,000 in the future."

Congress: "OH BOY OH BOY OH BOY"

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I never understood why people think it's a useful deterrent to sue the government.. You're suing them for YOUR money.

Corperate responsibility

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?

Not quite

You're not really understanding the situation. AT&T didn't say, "Hey, let's spy on our customers, and ask Bush if we can do it." That's not how his happened.

What actually happened was King George II told AT&T and other companies: Let us into your networks. We say so. We have the guns. If you don't comply, then you'll be branded as terrorists.

And yes, you can say that AT&T and such should not have complied, but nobody outside of the top brass at AT&T know what they were threatened with. Maybe they were given payment, maybe they weren't. Of course, the government won't release any of that information, so nobody will ever know.

Re:Not quite

Qwest said no.

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A wanton breach of ethics is now acceptable as long as it's mandated by the government? Someone tell that to the 70-year old guy who was pulled from his modest middle class retirement and shipped to Germany to stand trial.

Re:Not quite

And yes, you can say that AT&T and such should not have complied, but nobody outside of the top brass at AT&T know what they were threatened with.

Isn't this the kind of thing that once upon a time the Free Press leaked, Congress investigated, and the Justice Department prosecuted? Maybe it time people stopped mumbling the mindless incantation that "everything changed after 9/11" and using it as an excuse to abdicate their responsibilities and justify not upholding the law.

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Maybe it time people stopped mumbling the mindless incantation that "everything changed after 9/11" and using it as an excuse to abdicate their responsibilities and justify not upholding the law.

d00d, upholding the law is sooooo pre-9/11. Everything chang

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And, by "everything" I mean EVERYTHING.

Exactly: the terrorists won.

Re:Corperate responsibility

Acting like the devil's advocate, the government is special. If my ISP recieves a legitimate order to hand over information (warrant) or spy on me (wiretap) they'd do it and what would be a crime if they did it for anyone else is accepted as legal because the investigative power of the government trumphs normal privacy law. Thus you can't act on the AT&T case without answering the question "Does the NSA have authorization to launch this program?" because if they do, that legitimate order would be immunity. This is clearly a ploy to avoid raising that question in court. The NSA almost certainly had authorization through some executive order from Bush, which is getting to the real core of the issue.

The real issue is the ability of the executive branch to create programs not founded in law (Congress) nor ruled by law (the courts) under the guise of national security. If Bush is allowed to prevent the courts from reviewing this program then the separation of powers has failed - they're all wielded by the executive branch. "Law" is created by executive order, they operate it and noone reviews it. If they really want the NSA to spy on everyone, put it in law. What's sad is that if they named it something like the Anti-Terrorism Investigation Powers Act it'd probably get passed, too.

Shocking??? Get real

First, ALL companies participated in this program. To not do so, would have jeopardized their gov contracts. A major reason why the gov spreads the wealth around is because then the companies are beholden to them. Imagine what would have happened to Verizon or QWest(yes, qwest did not par ticpate in a few minor parts) if they had not? Not only would they have been denied future contracts, but they would have lost major gov contracts and probably a number of other contracts dealing with companies who are very dependant on the feds. For QWest alone, they would have lost no less than 20% of their business. Verizon would have lost a great deal more. What is shocking is that this is in the open.

Ex Post Facto laws unconstituional?

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]

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In other words, you can't change the legal status of actions in the past.

So? They'll just redefine the meaning of the word "past".

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You can change the legal status from illegal to legal under certain circumstances. Such as situation where someone finds a loophole so that they get punished for doing something that really shouldn't have been illegal, but due to the wording of the law, i

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They aren't changing the law, merely making a new law that the old one won't be enforced.

Re:Ex Post Facto laws unconstituional?

Bush already introduced a retrospective amnesty act in the form of the Military Commissions Act which exempted Bush and those working for him from prosecution under the War Crimes Act for acts committed before the commencement of the MCA.

As for bills of attainder (legislation outlawing a person or organisation rather than their actions), try declaring yourself a member of Al-Qaeda in the USA and see how long it takes before you are detained (or carted off to Guantanamo Bay).

Keep up. Your head of state declared two years ago that "[the U.S. Constitution]'s just a goddamned piece of paper!"

Re:Ex Post Facto laws unconstituional?

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.

How about a trade...

Since it would save them from going bankrupt and thus is worth money to have the immunity... how about a trade: Retroactive immunity that only applies up to this point, in exchange for net neutrality? They give up the profit of double-dipping in exchange

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I have a better deal: the charges against AT&T are dropped in exchange for them testifying against the NSA and GWB. Oh wait...GWB appoints the prosecutors and judiciary and the NSA know all their dirty secrets..never mind...

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Before someone points this out, I am well aware that they are only being sued ATM but my point is they probably would have been charged with something by now if the prosecutors didn't have their hands tied by the perps.

God forbid...

Director of National Intelligence Mike McConnell has claimed that lawsuits could 'bankrupt these companies.'

God forbid a company goes bankrupt for breaking the law. If a lawsuit does bankrupt the company, its the company's own fault for not having its customer's best interests in mind. Thats the law of the land... you upset your customers, you run the risk of losing them, or worse (ie: having them sue you). They made a bad business move and they should pay the consequences. They shouldn't be allowed to not suffer any consequences just because it might hurt them. That's ridiculous. Why does the government go so far out of its way to try and protect big businesses? even when its protecting these businesses from the citizens that had their rights abused by these companies. 'A goverment for the people' my ass.

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Whether or not we have something to hide is not the problem. The problem is that privacy is a right. As people, we are given the right to privacy. What gives these companies the right to spy on us? "Increased terrorism"? What are you on?

Hah!

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

Then either you don't live in the US, or you are under the age of 12. Congress is as crooked as any major corporation, and anytime they want to do something like this they just duplicate The Bush Maneuver..."its for National Security".

Darn...

You know, I really really REALLY hate to say this...

But these guys were just following cues from the NSA. They should be given immunity, and the people in charge who allowed the NSA to solicit these companies into doing illegal wiretapping should be prosec

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Just taking voluntary orders from a government body doesn't make you immune from your actions. The company was never forced to do anything. Though, i suppose its possible the NSA is trying to put a lid on this because they may have used shady tactics to

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You raise some good points but the telcos, as you would imagine, have the very best lawyers on wiretapping issues. I find it very hard to believe they didn't know they were breaking FISA laws. Which makes me wonder why they went along with scheme. Maybe

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I am sure that they are quite familiar of the constitution and had a very clear understanding of the laws dealing with wiretapping as they deal with warrants for information everyday.

They knew exactly what they were doing and that it was illegal.

Re:Darn...

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.

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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.

Just a minor fix: Rumsfeld => Ashcroft.

Re:Darn...

Everyone else is already calling BS, and I agree. The companies colluded voluntarily, whether it was to preserve contracts or not; greed's not a reason to break the law.

I'll also point out that the only way you'll ever be able to ensure that the government won't be able to do this again, at least so easily, is to crucify the companies who helped them do it and didn't call foul loudly and publicly. Set that sort of precedent, and they won't have willing accomplices again. Moreover, it'll be for -business- reasons, the only universal ones in a capitalist society.

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If the government tells you to do something illegal, and you do it, then why is it suddenly your responsibility and not theirs? I consider it entrapment.

Seriously, if you've got to hire lawyers just to make sure the government is asking you to do things th

Not entirely a Bad Thing

It would be greatly satisfying to roast them over Congressional coals, but with immunity they're more likely to cooperate with agencies that have reason to investigate abuses of power.

Not a ray of sunshine, put at least it's the crack of dawn...

how can there be immunity?

I don't understand. the ability to sue is fundamental. you may not WIN and even if you win you may not be able to actually COLLECT, but to deprive the ability to even raise the issue in court?

trim our constitutional rights, much, congress? oh right - it

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Besides, "going out of business", in this context, just means that some other large corporation will buy their assets and kick out the current management team. Heck, maybe Google could take out an option to pick up Verizon for ten cents on the dollar. In a

command and control

It's actually in the long-term best interests of all companies to *not* have this immunity.

This just enables a form of government interference in corporations that is even worse than regulatory laws. Regulations get made in the open and are subject to lobbying and court rulings. Whereas the NSA warrantless spying amounts to the commandeering of the corporate assets and procedures and is enforced by secret laws that (apparently) cannot be challenged in court in any reasonable way.

Even with recompensation that returns a profit on investment, this is a bad deal for corporate independence.

I have always disliked bullies

And Government is the biggest bully of all.

Imagine playing a game where if the other side is losing they get to rewrite the rules of the game in their favour - retroactively if necessary. They have done it before, and they will do it again. The terrorists have already won. Our own governments have destroyed our freedom on their behalf, and it doesn't matter anymore who wins "the war". John Q. Public loses either way.

Call the Democratic Leadership on this

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???

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.