Shorter SSCI: The Immunity Is Really for Qwest

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

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

Under the existing statutory scheme, wire or electroniccommunication providers are authorized to provide information andassistance to persons with authority to conduct electronic surveillanceif the providers have been provided with (1) a court order directingthe assistance, or (2) a certification in writing signed by theAttorney General or certain other officers that ―no warrant or courtorder is required by law, that all statutory requirements have beenmet, and that the specific assistance is required.‖ See 18 U.S.C. §2511(2)(a)(ii). Current law therefore envisions that wire andelectronic communication service providers will play a lawful role inthe Government’s conduct of electronic surveillance.

Section 2511(2)(a)(ii) protects these providers from suit as long astheir actions are consistent with statutory authorizations. Onceelectronic communication service providers have a court order orcertification, ―no cause of action shall lie in any court against anyprovider of wire or electronic communication service . . . forproviding information, facilities, or assistance in accordance with theterms of a court order, statutory authorization, or certification underthis chapter. Id. The Protect America Act and Title I of this billprovide similar protections from suit for providing information orassistance in accordance with statutory directives. All of theseimmunity provisions are designed to ensure that wire and electroniccommunication service providers assist the Government with electronicsurveillance activities when necessary, and recognize the good faith ofthose providers who assist the Government in accordance with thestatutory scheme.

To the extent that any existing immunity provisions are applicable,however, providers have not been able to benefit from the provisions inthe civil cases that are currently pending. Because the Government hasclaimed the state secrets privilege over the question of whether anyparticular provider furnished assistance to the Government, anelectronic communication service provider who cooperated with theGovernment pursuant to a valid court order or certification cannotprove it is entitled to immunity under section 2511(2)(a)(ii) withoutdisclosing the information deemed privileged by the Executive branch.Thus, electronic communication providers are prohibited from seekingimmunity under section 2511(2)(a)(ii) for any assistance they may haveprovided to the intelligence community, with the approval of the FISACourt, after January 17, 2007.

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

[snip]

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

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

The procedure in section 203 allows a court to review acertification as to whether an individual either assisted theGovernment pursuant to a lawful statutory requirement or did not assistthe Government, even when public disclosure of such facts would harmthe national security. Because an assertion of state secrets over thesame facts would likely prevent all judicial review over whether, andunder what authorities, an individual assisted the Government, thisprovision serves to expand judicial review to an area that may havebeen previously non-justiciable. In addition, the statute explicitlyallows the court to review for abuse of discretion the AttorneyGeneral’s certification that a person either did not assist theGovernment or cooperated with the Government pursuant to statutoryrequirements.

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

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

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