House Democrats Reject Telecom Immunity

2 The telecom companies did nothing more than provide assistance in accordance with a law passed by Congress. They would never have done it otherwise.

Then they don't need immunity.

3 I'm sure you don't like getting sued for cooperating with the government, the legal fees will be millions, and millions more of our tax dollars spent by court involvement.

The telcos do not have to, and should not comply if there is no warrant.

For example, The NSA approached Qwest about participating in a warrantless surveillance program more than six months before 9/11. Qwest thought it was illegal and refused. They claim that the federal government then canceled a separate, lucrative contract with the NSA in retribution.

This allegation of federal government strong-arming should concern you. All they had to do was GET A WARRANT and Qwest would be bound by law to comply. If the federal government did, indeed, rescind non-related contracts in an attempt to punish Qwest, they violated law and court cases are currently pending. Other cases are also being filed against the federal government for their role, but the Nuremburg defense does not absolve the telcos of their responsibility to protect the fourth amendment rights of their customers (with which they have contracts with privacy clauses).

If you hired me to keep sensitive information and I turned around and gave it to the federal government without a warrant...

4 This isn't a dispute over a tree branch hanging across your neighbor's property, this is a war, national security, life and death. You either want the telecom surveillance or you don't. Law suits are preposterous.

I MUST GIVE UP MY RIGHT TO LEGAL RECOURSE IN RESPONSE TO VIOLATIONS OF MY FOURTH AMENDMENT RIGHTS OR DIE!!!!111one11!

5 The telecoms won't cooperate anymore if they will be sued for their cooperation.

Then get a warrant. They can't refuse a warrant.

Why should telecommunication companies be granted retroactive immunity so they can’t be sued by Americans, for wiretapping American citizens in America without a warrant?

-- 2 The telecom companies did nothing more than provide assistance in accordance with a law passed by Congress. They would never have done it otherwise. --

What if the telecom companies provided assistance, but the assistance was NOT in accordance with any law passed by Congress, but instead was against a duly-passed federal law?

That's the legal/factual posture created by the combination of the Terrorist Surveillance Program, as described by the administration, and the federal surveillance statutes at 50 USC 1801 et seq / 18 USC 2511.

Now, as a practical matter, the issue is considerably more complex than just that. For one thing, an aggrieved party (as described in 50 USC 1810, the section of law that give plaintiffs a right to sue the government) would have to make a showing he or she was in fact surveilled. I think this hurdle cuts off virtually all suits.

If that doesn't cut off a suit, the government can assert state secret. It did so successfully with the al Haramin case, where the plaintiff had mistakenly been given evidence that it had in fact been surveilled. The plaintiff was denied use of this evidence by a decision of the Ninth Circuit (al Haramin case).

Finally, as a matter of general principle, it's possible (IMO), for a president to conduct an individual surveillance that is outside of statutory boundaries, but inside constitutional boundaries. Clinton did so with a warrantless physical invasion of Aldrich Ames' house, for the purpose of setting bugs.

Whether or not the specific actions undertaken by the TSP (which are in contravention to US federal statute) are constitutional can't be analyzed without resort to facts, and those facts aren't (and likely won't be) made public.

-- Rather than analyze all the reasons why a suit would probably fail, how about we pass the immunity, get the surveillance, and save the legal analysis for elsewhere. -- In general, it's legitimate to question a Congressional grant of immunity because we have a multi-part or multi-branch government where Courts have a role, in combination with certain expectations that aim to protect individual rights.

If Congress wants to provide a surveillance environment free from the risk of civil suits, it should repeal the laws that enable those suits. No such repeal has been suggested by either the administration or the Republicans in Congress. Yet civil suits relating to surveillance ALL have the risk of disclosing government secrets. So why have a statute that give a right to sue?

But what prompted me to post at all was your comment:

The telecom companies did nothing more than provide assistance in accordance with a law passed by Congress.

I wonder if your conclusion would change if that assertion was false. I happen to believe that it is a false assertion, but I certain have no interest in disabusing you of holding otherwise. Still, I don't think it's an unfair "hypothetical" to those who believe that 100% of the government's surveillance has been conducted in accordance with a law passed by Congress.

If the telecom companies broke a law passed by Congress, do you still think it's appropriate to "pass the immunity and save the legal analysis for elsewhere?"

Thanks Ernest. Are the Demwits *kidding* now?

Locked in a standoff with the White House, House Democrats on Tuesday maintained their refusal to shield from civil lawsuits telecommunications companies that helped the government eavesdrop on their customers without a secret court's permission. But they offered the companies an olive branch: the chance to use classified government documents to defend themselves in court... The House bill also would create a bipartisan commission, modeled after the 9/11 Commission, to investigate the Bush administration's secret wiretapping program. The legislation drew swift criticism from congressional Republicans and from Attorney General Michael Mukasey and National Intelligence Director Mike McConnell, who said it fails to fix problems with the 30-year-old Foreign Intelligence Surveillance Act that Congress is trying to update. They also said any bill that does not provide telecom immunity is unacceptable to the Bush administration.

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