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June 19, 2008

Comments

If anyone is keeping track, I just called my Congressional representative, Anna Eshoo, and was told she is voting against it (whereupon I told the staffer "Good job, keep it up.)

Call your presidential nominee, too. He probably could stop this, if he cared to.

To recap: there are some minor fixes to the FISA law that everyone agrees should be adopted. The sticking point is whether companies that helped the government engage in surveillance that broke the law should receive immunity for their actions. It seems to me clear that the answer is 'no'. First, people who break the law should be held accountable. Second, we're not talking about some private citizen who might understandably have been inclined to give the government the benefit of the doubt on questions of law, but about large companies with serious legal departments. Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out.

I'm torn on this one. The only reason I'm inclined to agree with you on the serious legal departments grounds is that the telecoms are truly enormous, but I don't at all believe the corporate/private citizen distinction is a useful place to draw the line. Very few companies, even very large ones are going to have a legal department that will be equipped to handle the government breathing down their neck in an unfamiliar area of law. And anything medium-sized could be financially crushed by the burden of trying to sort through it.

Also, and I know this partially comes from a difference in our view of the government, it seems to me that corporations are subject to all sorts of threats from the government that don't have the procedural norms for the protection of private citizens. Retaliatory government action against telcoms that resist vs. those that don't could have an enormous impact, be much harder to prove (the regulations involve huge amounts of discretion), and would have much fewer protections than a retaliatory arrest or other action against an indvidual citizen.

But I agree that in the case of the telcoms, it is a closer call.

I'm least swayed by the third reason: Congress could/can investigate if it wanted to. Putting companies up for huge financial costs because Congress doesn't want to do its job doesn't strike me quite right.

But on the other hand, I hate, hate, hate the stupid political games around this. If there is going to be immunity because of government post-9/11 demands, just do it. Don't pretend not to do it and hide it behind the courts. If there was a sensible way of making it a rule that Congressmen had to do everything directly, I would be on board.

How can we hold our elected officials properly accountable if it is a full time job just to figure out what the heck they are doing?

(I know a bug for me is a feature for my Congressman).

Very few companies, even very large ones are going to have a legal department that will be equipped to handle the government breathing down their neck in an unfamiliar area of law

How can this possibly be an unfamiliar area of law for a telecom? Especially a huge one?

The whole point of a "government of laws and not of men" is that powers are assigned to the OFFICE, not to the person who happens to occupy it at the moment. So, to the extent that this deal allows THE president to "do whatever he feels like if he can convince himself that it's relevant to national security", it is an aggrandizement of soon-to-be-President Obama's power, not just Dubya's. You'd think that would give REPUBLICANS pause, even if it did not faze the Blue Dogs.

Consider that the government needs money to fight "the war on terror"; tax evasion deprives the government of money; therefore tax evaders are aiding and abetting the terrorists. As Commander in Chief, Obama would be duty-bound to "protect our national security" by tapping the phones of suspected terrorist allies -- tax accountants working for rich Republicans, for instance. He would have the power to do so, under the Republican (and Blue Dog) theory of presidential authority :-)

-- TP

Couldn't holding the telecoms accountable have all sorts of uninteded consequences. I call my home. The line is contantly busy. I ask the operator to check the line- I've done this many times in the last 35 years. Thats just off the top of my pointy head. I'm not sure constitional protections ( raed restrictions) extend to private companies. Think medical records- thought they were private did you- credit reports and many other aspects of privacy.

Very few companies, even very large ones are going to have a legal department that will be equipped to handle the government breathing down their neck in an unfamiliar area of law.

Uh, yeah, what Doctor Science said. I can't countenance a set of circumstances under which a company in the telecommunications industry of such scale that they might be asked by the government to provide wiretaps would have a legal department for whom this was "an unfamiliar area of law." For realz.

it is an aggrandizement of soon-to-be-President Obama's power, not just Dubya's. You'd think that would give REPUBLICANS pause, even if it did not faze the Blue Dogs.

ya know... i just realized that the Hillary Test is no longer very useful.

the end of an era, i suppose

The ability of the telecoms to get Congress to do their bidding kind of undercuts the "corporations need more protection than you and me" defense. I know you acknowledged that the telcos are extremely powerful & well connected, but in general, corporations are much better situated against gov't overreach than private citizens. Worry about what happens to citizens when contractors can hide behind the gov'ts sovereign immunity. This law is hardly the only attempt.

I've read some analysis that this bill would not just immunize telecom companies, but ANYBODY who broke the law on the orders of the Bush administration. That includes CIA officers who used torture, Blackwater, people like John Yoo, anyone who committed war crimes in the name of the "War on Terror".

This bill needs to be stopped, ASAP.

"I can't countenance a set of circumstances under which a company in the telecommunications industry of such scale that they might be asked by the government to provide wiretaps would have a legal department for whom this was "an unfamiliar area of law." For realz."

Well it was right after 9/11 and regarding terrorist investigations that were a weird mix of police and military. So I would think so.

And I said that telcoms are big enough that the objection may hold, but that most companies aren't.

"The ability of the telecoms to get Congress to do their bidding kind of undercuts the "corporations need more protection than you and me" defense."

Not at all. That is the telecoms as a group operating together. That says nothing about a case where some cooperate with the government and other don't. The government regularly treats those who cooperate with even illegitimate shows of force differently from those who don't.

A police officer can't at random come up to you and compel you to produce an ID. But if he asks you and you think he shouldn't have done it but show him anyway and he asks me and I challenge his authority to do so (even though it is completely within my rights, and I am in fact correct that I don't have to show him an ID under the circumstances) who is more likely to be arrested under what will turn out later to be pretextual reasons?

And again, I'm willing to buy that the telcoms have enough legal clout that perhaps they should have resisted more. I'm NOT willing to draw that line at just 'corporation' vs. 'individual citizen'. Very, very few corporations have the kind of legal departments that you are imagining.

"Worry about what happens to citizens when contractors can hide behind the gov'ts sovereign immunity. This law is hardly the only attempt."

I do. I think that is ridiculous, but then again I think sovereign immunity to lawsuit isn't all it is cracked up to be either. So I would probably remove the thing they are hiding behind.

Done. Hoping that Feinstein ends up on the right side of this one for a change.

"Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out."

I agree with hilzoy most of the time on her posts but on this one I have to beg to differ. That Congress failed utterly in its oversight of the White House I agree with however I don't know that lawyers chasing the phone companies is the way to go just because Congress failed.

My other thought here is that as I understand the bill (and haven't read it yet) is that this relates only to past actions, and there is no immunity implicit or implied, in any future actions of the telcos. So is it fair to read this as saying "OK, the telco's were as afraid as everyone else of the Administration, it was an odd time in history, let's let bygones be bygones but don't ever do that again (as hopefully Congress will have some more guts to draft/investigate more next time"

One telecom did resist, and did refuse to commit felonies at the request of the Bush Administration. Qwest told the government that it would not break the law, and in response, the Bushies prosecuted Qwest president Ralph Nacchio in yet another politically-motivated abuse of the DOJ.

link to the story in the Rocky Mountain News.

Sebastian-

I think the analogy for an individual citizen might be say, a police officer asking me to break into the house of someone they suspected in order to obtain evidence - even as a private citizen, I should refuse to do this, probably until I have consulted my own lawyer.

As such, I definitely agree that there should be no special treatment for citizens vs. corporations. No one should break the law, even on the word of a government official that it is ok.

As to telecom legal departments, this is certainly something they should know. Or find out quickly. FISA was the law on 9/10/2001 and it was still the law on 9/11/2001, 9/12/2001, etc. It was a law about TELECOM WIRETAPS, not obscure regulations on pig farming. It was absolutely the job of both law enforcement officials and the telecoms to KNOW IT, and FOLLOW IT.

Maybe, just MAYBE, I would approve of a sharply limited amnesty for any irregularities in say, the first couple days after 9/11, when perhaps law enforcement was in a panic, and telecoms were not inclined to ask too many questions. MAYBE I could forgive a couple days of panic. (Though that sets a dangerous precedent too.)

But a general immunity? That is... Insane

f anyone is keeping track, I just called my Congressional representative

Done

Call your presidential nominee, too. He probably could stop this, if he cared to.

And done. No comments from Feinstein's or Obama's office, just that they would pass the message along.


Sebastian, just because the telcoms aren't immunr doesn't mean they're going to be found guilty. If a [smallish] telcon can show that they were following the law as best they knew (and had no ongoing legal council to show otherwise), I think they'd be OK. Besides, wouldn't prosecuters go after the big boys, who do have ongoing legal council, first anyway?

Congressional power to investigate generally hits a brick wall when the administration classifies for political reasons & stonewalls. There is no reason at all to believe immunity here would be a one-off; there will always be other "emergencies." They broke the law for $; their bottom line should be at risk.

I don't really care that much whether the telecoms get punished for their craven acqiescence in the early stages of totalitarian government or not.

But I very much desire proceedings in open court in which these issues are explored, with discovery under subpoena, because I care about the rule of law, and I want the nation to know exactly how the Bush Administration leaned on the telecoms to commit felonies, and when they started to do so (hint: it was long before 9/11), and who the targets were (hint: it wasn't terrorists, it was domestic political opponents: Democrats, environmentalists, civil-rights activists).

here is a fine backgrounder on the EFF lawsuit that's got the Bushies so frightened of disclosure, and the legal issues.

Also, everyone should bear mind: if the companies can show they acted in good faith believe that their actions were legal, they are likely to be immune under existing law.

It makes no sense to say "let's let bygones be bygones but don't ever do that again" if we don't know what "that" is. I don't understand the need to grant immunity before establishing what exactly the immunity is being granted for.

I suppose we should be grateful that the immunity period apparently doesn't begin until 11 Sep 2001, so the surveillance reported to have happened before then won't be covered.

everyone just pretend that the 3:52 pm post was written in standard, gramatically correct, English, okay?

Jeff: "Besides, wouldn't prosecuters go after the big boys, who do have ongoing legal council, first anyway?"

This isn't about prosecutors unless I've totally gotten confused. This is about individual lawsuits against the telecoms.

Jeff: "Sebastian, just because the telcoms aren't immunr doesn't mean they're going to be found guilty."

This always annoys me. I know this is just a function of how people are exposed to law in popular depictions (so I'm not trying to attack you), but the outcome of the trial isn't necessarily the biggest worry. In many cases the biggest threat to businesses isn't being found liable, it is having to go to trial on case after case where they aren't going to be found liable.

You can be almost 100% certain that your cases will result in you being not found liable (and I only hedge with almost because in legal system you can always get hit with some really bad judge combined with a really bad jury if you try enough cases) and still spend tens of millions of dollars defending the cases. And sometimes you have to do so even if defending the cases is more than the potential judgment, because you know that if the plaintiff lawyers hear you are willing to settle crazy cases, they will hit you with a hundred (and I'm not exaggerating for effect) more.

Katherine, "They broke the law for $; their bottom line should be at risk."

What does this mean? Did the government pay them extra money to break the law? I hadn't heard about that.

In the 9th Circuit's opinion on denying summary judgment to the telecom's the judge noted that it was inconceivable the telecoms didn't know they were being asked to violate the law. This is their only recourse, because they would lose in Court.

As much as it offends me that the law is for sale (I said "offend", not "surprise"), what is truly disgusting is the celebration from all those "small-government" conservatives or libertarians or "classical liberals." This is a violation of Federal statute and they bought immunity.

How America in 2008 is different from Rome c. 58 B.C.E. is beyond me.

For those of you on the left who think this is a travesty, you should consider donating some money:

Blue America

For those of you on the right who think this is a travesty, you should too:

Strange Bedfellows

Sebastian:

yes, the Bush Administration paid them extra (and is still paying them extra) to break the law. and when the government fell behind on the graft payments, the telecoms balked.

link
link

Seb: I didn't mean that the private citizen/public company distinction was the one I was relying on; just that any qualms one might have about some small party with no particular reason to know the law possibly believing the government cannot possibly apply to, say, Verizon. Where you draw the line is another matter.

Personally, I've always thought I should start with a presumption that ignorance of the law is no excuse, and work my way into a more forgiving frame of mind if circumstances warrant.

And about discovery: when Congress refuses to investigate, all the more reason why some other legitimate proceeding should be allowed to go forward. I do not want my rights infringed, even if my Rep. and Senators disagree. I do write letters, make phone calls, etc., but do they listen? Why should I have no ability to figure out what's going on just because they fall down on their jobs?

(Note: I don't mean this as a reason for allowing, say, witch hunts with no other purpose. I mean: when a suit is going forward, a suit that is not being thrown out as ludicrous, and it concerns a serious violation of law, one reason to hope it continues is discovery. But this argument presupposes that the whole process starts and is allowed to continue on other grounds. In this case, dismissing it is the deviation from standard procedure, and must be justified; discovery is a reason to be wary of any such justification.)

Glenn Greenwald

... when the Congress was controlled by Bill Frist and Denny Hastert, the administration tried to get a bill passed legalizing warrantless eavesdropping and telecom amnesty, but was unable. They had to wait until the Congress was controlled by Steny Hoyer, Nancy Pelosi and Harry Reid to accomplish that.

In what way is this bill a "compromise"? Looks to me like, as usual, the Administration is getting everything it wants. Telecom immunity AND warrantless surveillance. Why?

"I didn't mean that the private citizen/public company distinction was the one I was relying on; just that any qualms one might have about some small party with no particular reason to know the law possibly believing the government cannot possibly apply to, say, Verizon. Where you draw the line is another matter."

Ok, I can buy into that.

So, what do I have to look forward to when Democrats get total control? The more I support your party the more they let me down.

Liberal/socialist tendencies, and no real desire to roll back the clear violations of BushCo. Now that is something to look forward to…

(Yes, of course Republicans are worse. Duh. That’s why I left. Don’t bother firing up the flame-throwers. Democrats – Suck! Republicans – Worse! I get it… But pretty soon now I’m going to plug my ears and say “Lah Lah Lah lah..” when anyone tries to tell me how much better Democrats are.)

Note: This is a drive by.

Sebastian,
I used to work for a Telco long before 9/11. I can assure you that every employee was drilled in the legal requirements for disclosing customer information. Everyone. The Telco's have known and kept up to date on what is and is not legal. This is not new territory. I'd wager they knew the law far better than the people that asked them to break it.

Seb

Granting for the sake of argument your notion that the companies deserve to be protected becasue the government leaned on them, this bill is still bad. This bill tosses the suits, which means that there can be no means for finding out what, exactly, the government leaned on them to do.

The appropriate response if you believe your argument is to substitute the government and the individuals in the government who did the leaning for the companies themselves in the suits.

Liberal/socialist tendencies, and no real desire to roll back the clear violations of BushCo.

One of Obama's first statements after clinching the nomination was that he was going to review every decision made by BushCo and reverse the ones that weren't Constitutional.

Immunity is being pushed by the "Blue Dog" DNC Democrats. Progressive Democrats are starting to make their way into Congress, but progress is slow.

"Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out."

Not necessarily. Paragraph 7 of Article I, § 3 of the Constitution states:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

The expiration of the current president's term does not make impeachment moot; the House can still investigate and vote articles of impeachment, with the Senate to determine disqualification from holding federal office in the future.

This is not a mere academic question. After serving as president, John Quincy Adams served in the House of Representatives and William Howard Taft served as Chief Justice of the United States. After serving as vice-president, Richard Nixon served as president and Hubert Humphrey served as a U. S. Senator. Walter Mondale served as Ambassador to Japan and was nominated to run for the Senate from Minnesota when Senator Paul Wellstone died in a plane crash.

Here's hoping that the next Congress will pursue articles of impeachment as to whether President Bush has taken care that the laws be faithfully executed as to electronic surveillance.


Jeff: One of Obama's first statements after clinching the nomination was that he was going to review every decision made by BushCo and reverse the ones that weren't Constitutional.

Sorry, but I don’t put much faith in the statements of someone on the presidential campaign trail. Obama has already flipped at least as many flops as McCain. There are days he flips at breakfast and flops after lunch. Just as hilzoy here posts lists of McCain’s gaffes and flip flops, there are right wingers doing the same for Obama. So far, although I like him, he hasn’t actually convinced me he is anything but a young, inexperienced, slightly naïve politician with few accomplishments, who does better with a prepared speech and a teleprompter than off the cuff. He gives a hell of a speech, as long as it is prepared in advance. I prefer him to McCain. That doesn’t mean I’m buying what he is selling. It just means that Republicans have pissed me off and McCain scares the hell out of me and our government is so screwed at this point that I’m willing to give him a shot because his speeches make me feel good and he could hardly screw it up any worse.

You all could probably run Karl Marx at this point and I’d give him a fair shake…

OCSteve: the two things that struck me about Obama's statements were: first, that he was not asked 'will you try to reverse Bush's decisions?', but 'what will you do in your first 100 days?' Which means: this is what leapt to his mind. And second, that I don't think there really is a huge civil liberties pressure group that that statement might have been designed to appeal to. I wish there were, but I don't think there is.

I also really don't think Obama has reversed nearly as many decisions as McCain, certainly not as many substantive ones. I'd be open to examples, of course (though I tend to think changing one's mind over the course of years, as opposed to weeks, is comprehensible.) I'll probably blog about it soon, but Steve Benen (The Carpetbagger Report) is keeping a running list, and the number from just the past two weeks is pretty astounding. Plus, Obama doesn't have the problem McCain seems to have with knowing what his positions are.

I should also say, for what it's worth: I really didn't expect to end up with the view that I now have of McCain. I wasn't paying attention much during the GOP primary; then I thought: well, McCain has clearly tacked towards the GOP base on things like tax cuts (where, frankly, it's very hard to put it down to a change of heart, since the conditions were so much more favorable to tax cuts when he opposed them), and he's trying desperately to make evangelicals like him, but he's still the only GOP candidate who lives in the same universe I do -- one in which, say, there's a problem with torture.

I never thought that when I did focus in, I'd find the level of sheer ignorance I did find. Again, I never imagined that McCain was one of those wonky politicians who actually like learning about the ins and outs of rail policy, but there's a long way between that and complete cluelessness.

It has genuinely surprised me.

I suppose this belongs on the other thread, but is McCain's cluelessness/demagoguery on habeas, & the press's inability to ask him basic, logical follow up questions about it, driving anyone else as crazy as it's driving me? I guess he's just saying what Lindsey Graham tells him to say, but jeez. On so many issues--if you know even a little bit about them, McCain's position is self-contradictory if not incoherent, but the press doesn't know even a little bit & can't be bothered to find out.

Katherine, Tim Russert's funeral isn't just going to cover itself, you know. You think they have time for piddly crap like the GOP candidate's position on habeas?

-if you know even a little bit about them, McCain's position is self-contradictory if not incoherent, but the press doesn't know even a little bit & can't be bothered to find out.

nah, i've been hearing stories here and there about his inconsistencies. NPR's been doing tentative stories about it - trying hard to give him the benefit of the doubt, or play it like "he's just speaking to two different audiences".

so, they know.. they're just still a little afraid to admit it.

A few thoughts, whose ordering may not be ideal:

1) Immunity is contagious. Grant it once and the ripples expand rapidly in all directions to encompass widening circles of candidates and offences. This effect has already been "discounted", to use the language of the markets.

2) The draft language specifies a start date of 11 Sep. 2001. The important surveillance began in February 2001 -- unconditionally THE first priority of the incoming regime -- and its purpose was exclusively political.

3) What the Democrats are "afraid" of is acknowledging the total illegitimacy of the American Constitutional system, which cannot be incrementally repaired but must be swept away and replaced with something new after a complete break of institutional continuity. This is something that any of us could well be "afraid" of, inasmuch as the act of diagnosing it carries the philosophical obligation -- which I explicitly shirk -- to propose an alternative, at least in outline. This defeats my imagination.

4) The "minor fixes" that are required would be to the effect of making any surveillance, of any target, by any method, for any purpose, structurally impossible. Surveillance destroys the social contract that governs urban society. Rural society has a different attitude, which only goes to show that urban and rural societies cannot be governed under a common framework of law.

(Portions cross-posted from Kevin Drum's blog. I apologize if that is, in and of itself, a breach of netiquette. I hope the disclaimer will allow it to pass.)

Jeff: Immunity is being pushed by the "Blue Dog" DNC Democrats.

This is simply not true. If the leadership were not in support of this capitulation, it would not be coming to a vote. There would not have been secret negotiations with Republicans. The Blue Dogs are being catered to despite being a distinct minority in the delegation.

This is a combination of electoral cowardice and stupidity (because the special elections have made it clear that the right wing's booga-wooga-soft-on-terror b.s. isn't even working, even in conservative districts) and corporate capture of the party at the highest levels.

As in, about $200K each to Sens. Clinton and Obama from the telcoms. The silence from both of them is deafening.

This isn't just the fault of some dumbass quasi-Democrats from conservative districts. This is a bigtime sellout of the rule of law. We're going back to Nixonland, where the law is what the president says it is, and Nancy Pelosi and Harry Reid are taking us there on an express train tomorrow.

OCSteve: I agree completely with you.

@hilzoy: If Obama's so all fired up about civil liberties, why has he remained silent about this bill?

As in, about $200K each to Sens. Clinton and Obama from the telcoms. The silence from both of them is deafening.

Nell, I agree about the deafening part, but I'm kind of confused on one thing here. I thought people in the telecom industry were very confident that the telecos would never sign off on this without first getting a waiver whereby the government agrees to assume the costs of any judgments made against them. If that's the case, why would they blow cash on lobbying for this specific issue?

I mean, yes, lawsuits are disruptive even if someone else pays for the judgments, but I imagine their corporate counsel is more than smart enough to get a provision into the waiver whereby the government picks up attorneys fees as well. And yes, the public relations impact won't be the greatest thing on Earth, but since they're all doing it, there's no competitive advantage, and in any event, they can always fall back on claiming that government told them to do this; most of the public isn't going to care about wiretapping law and precedent enough to realize how ridiculous that excuse is.

Just to be clear, I'm not disagreeing with the notion that one of the main reasons the Dems caved was because of corporate contributions -- that seems very plausible in general. I'm just confused on why the telecos would spend their cash on this issue now. It doesn't seem worthwhile.

Turb, the telcoms have a huge agenda, involving way more than just this immunity issue. They have spent tens of millions just lobbying this Congress, aside from campaign contributions.

I don't think it's as simple as Clinton and Obama and the whole Democratic leadership being bought for a measly half-million in campaign contributions.

Turb,
Even if the Telcos were indemnified for financial loss there may be other criminal penalties that they want to avoid.

...there may be other criminal penalties that they want to avoid.

and all kinds of bad press, were it to actually come to trial.

Oy vey.

So all a telecom company has to do is show that it got a request for assistance in fighting terrorism during a particular period, and that one of several members of the government said that that activity had been authorized by the President and is legal. If it can show this, the court has to dismiss the case. It doesn't matter whether or not the activity in question actually was legal. The courts can't look into that question, as long as the telecom can produce a statement from one of several people in the government saying that it was legal.

This would be a stupid law to pass even in more normal times, when we might hope that government lawyers would really try, in good faith, to determine whether some program really was legal or not. But it's an insane law to pass now ....

Leave aside the particular complaint about how it's ridiculous to trust the Bush administration. I'm more interested in Hilzoy's categorical statement. Why isn't it fair for a private citizen to rely on a representation by a prosecutor regarding whether an act is legal or not? Why should we allow the government to, effectively, go back on its word?

Consider the following scenario:

You are the General Counsel for a hypothetical telecom firm based in Chicago. You have about two thousand things to do every day, and you are forced to make decisions every day based on a few minutes of briefing and your best jugment. Because that's all the time you have. Some of those decisions will cause some of your fellow workers to lose their jobs. Others will cost your shareholders (including pensions, 401ks, etc.) money. Others involve threats of lawsuits from civil plaintiffs or the government. It's a high-stress job, but you do what you can and no one shoud cry for you: you don't have much of a family life, but you're well compensated (although not nearly as well compensated, usually, as your bosses).

The United States Attorney for the Northern District of Illinois (that's Chicago and surroundings) comes to this hypothetical GC in October of 2001 and asks for her company's assistance in the war against terror. Say that in 2001 this hypothetical GC was, like me at the time, working on a high floor of the Sears Tower. She is thus acutely aware not only of what has just happened, but also is affected every day by brand-new countermeasures that seem completely strange and out-of-place -- and, yet, desperately necessary (it seems).

(No, I'm not talking about me or anyone I know -- I'm just drawing on my limited personal experience of having worked 70+ floors up in a well-known skyscraper post 9/11.)

The US Attorney asks your firm to participate in a program to protect the country. Our GC has some question in her mind that the program may not be legal, but the US Attorney says that it is. He gives you a written analysis that supports his opinion. He swears that the AG of the US and the OLC agrees (and he's right, at least at the time). You talk with your outside counsel and they voice some concerns, but note that everyone's in uncharted water. There's definitely no flashing sign that says "ILLEGAL."

Now, here's where you expect me to ask "what would you do?" But that's not my question. I don't care what you'd do. I don't care what I'd do either.

If this hypothetical GC chooses to rely on the government's legal opinion, is it fair to let the government turn around, seven years later, and hold the company liable?

If a prosecutor causes you to do something based on his promise that it's legal, is it fair for the next prosecutor go back on the promise? Because that is the issue here.

I think that the answer is no. Hilzoy clearly has a different perspective. I'd be interested in the perspectives of others.

von

Also, everyone should bear mind: if the companies can show they acted in good faith believe that their actions were legal, they are likely to be immune under existing law.

I'm genuinely confused by this statement, Katherine. Are you suggesting some sort of defense based on mens rea? (Which I don't think will fly -- the telecoms clearly intended their actions.) Or something else?

It is a legitimate legal defense that the accused was told authoritatively by government officials that his or her conduct was legal, and reasonably believed them.

So if that's what the telecoms claimed happened, let them litigate the issue in Court.

Hundreds of thousands of people have to defend themselves against criminal charges every year--some of them are even innocent. They don't get Congress to pass statutes immunizing them. Why should the telecoms be so darn special?

Sebastian, you remind me of a most unfortunate federal judge I've been dealing with lately, a GWB appointee, naturally, who is most concerned that a multibillion dollar corporation was treated unfairly by my paraplegic client in previous litigation . . .

von: I appreciate that being the attorney for a large corporation is a stressful job. Nonetheless, I would expect her to do whatever she thought most important to ensure that her company stays on the right side of the law. If she relies on the government's legal analysis rather than doing her own, she had better have a lot of trust in the people who drew up that analysis, because she is placing her employer in legal jeopardy if she's wrong.

In the case at hand, I think there were plenty of red flags. I would think that "wiretap, no warrant" would be a red flag, especially for someone whose job was interpreting the law for telecoms.

And nell: I'd like to know where Obama is too.

If a prosecutor causes you to do something based on his promise that it's legal, is it fair for the next prosecutor go back on the promise? Because that is the issue here.

So, if I'm in prison and a prosecutor asks me to commit perjury in exchange for a reduced sentence recommendation, and I actually go through with it, are you saying that I should not be held accountable for perjury when a new DA is elected?

I think any analysis should include some mention of the plausibility of the governments proposal. I mean, if the district attorney called you and said "I need you to ask your security guards to kill 5 people randomly for national security reasons," I think you could justifiably say that there is no plausible explanation for how such criminal activity could benefit national security. In a similar fashion, based on my technical knowledge, I see no plausible way in which the sorts of programs we're talking about could benefit national security. I wouldn't expect a general counsel to have that same knowledge, but since they work at a giant telecom company, I would expect people down the hall to know, I'd expect the director of corporate security to know, and I'd expect that the GC would be getting their written opinions before making any decisions.

So if that's what the telecoms claimed happened, let them litigate the issue in Court.

Hundreds of thousands of people have to defend themselves against criminal charges every year--some of them are even innocent. They don't get Congress to pass statutes immunizing them. Why should the telecoms be so darn special?

Isn't that exactly what the Telecom bill states?

I mean, if you agree with the principle, than your actual objection is not with what the bill holds, but the mechanism that it provides (effectively, in camera review by a District Court). But that's not Hilzoy's sweeping indictment.

Hilzoy, your post on June 19, 2008 at 10:56 PM answers the question that I didn't pose. Again, I don't really care what you'd (expect, want, hope) a GC at a telecom to do. As I wrote:

Now, here's where you expect me to ask "what would you do?" But that's not my question. I don't care what you'd do. I don't care what I'd do either.

If this hypothetical GC chooses to rely on the government's legal opinion, is it fair to let the government turn around, seven years later, and hold the company liable?

If a prosecutor causes you to do something based on his promise that it's legal, is it fair for the next prosecutor go back on the promise? Because that is the issue here.

ABout the "good faith" defense: see here, sec. d.

About the 'government going back on its word': if a government official makes a promise he has no right to make -- such as the promise that I will not be prosecuted for a crime -- I think that subsequent officials should take that into account in deciding whether or not to prosecute. But no government has the right to immunize people against civil suits that are otherwise in order, where no legal procedure for granting that immunity exists.

I mean, it would be one thing if the law said: the government can immunize people in this way. But where it says no such thing, and some official comes up to me and says: hey, if you do something that will open you up to civil liability, does the government have an obligation, retroactively, to bar those lawsuits?

von: There's definitely no flashing sign that says "ILLEGAL."

Yes, there is. So much of one that, as another commenter has pointed out above, the Judge Vaughn Walker, in declining to dismiss the telcom suits, said:

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.

"Than" ==> "then" in my 11:04 p.m. post.

So, if I'm in prison and a prosecutor asks me to commit perjury in exchange for a reduced sentence recommendation, and I actually go through with it, are you saying that I should not be held accountable for perjury when a new DA is elected?

My answer is, well, yes. If a prosecutor tells you that you are allowed to lie under oath under circumstances in which it's at least remotely plausible that the prosecutor is correct, and then you rely on the prosecutor and do exactly that, you should not be prosecuted. Perhaps the prosecutor should be held to account; you? No.

The government cannot take both sides of the issue. And, despite the partisan dispute involved, that's exactly what's going on here. Whether a Republican or Democrat is in charge, the person or company caught in the middle is facing the same jail cell or fine.

Your liability for your past actions shouldn't change with an election. That's rule by man, not law.

in my 11:06 comment: after "hey, if you do something that will open you up to civil liability,", insert something like: we will protect you from other people's lawsuits.

Also: I agree that liability shouldn't depend on an election. I disagree that when some government official makes a promise she's not entitled to make, that affects my liability in the first place.

If GWBush tells me I can steal candy from the corner story with impunity, I am liable for stealing. The fact that I might not actually be prosecuted until someone else takes office is irrelevant.

ABout the "good faith" defense: see here, sec. d.

Respectfully, Hilzoy, I need a lawyer with some experience in the area to explain why that's relevant to the issue at hand. Because I'm a lawyer and, although I've never looked at that part of the statute before, my 10-second read suggests that it has nothing whatsoever to do with what's going on here. (Is there something in 18 USC 2511(3) or 2511(2)(i), which are referenced in 18 USC 2520(d)(3)?)

About the 'government going back on its word': if a government official makes a promise he has no right to make -- such as the promise that I will not be prosecuted for a crime -- I think that subsequent officials should take that into account in deciding whether or not to prosecute. But no government has the right to immunize people against civil suits that are otherwise in order, where no legal procedure for granting that immunity exists.

That's a cogent response, although not mine (for the reasons given).

I mean, it would be one thing if the law said: the government can immunize people in this way. But where it says no such thing, and some official comes up to me and says: hey, if you do something that will open you up to civil liability, does the government have an obligation, retroactively, to bar those lawsuits?

I think that we differ on the "where it says no such thing" and what "some official" allegedly said. We're talking about a high-level law enforcement who assures the telecom the requested act is not only legal but necessary for national security.

von,

Who exactly are you claiming has the power to effectively make legal that which is illegal? You've already mentioned US Attorneys, but what about deputy USAs? What about federal judges? A regular district attorney? A regulatory committee member? Some guy who claims to be a USA but isn't? What if you claim that a USA told you breaking a particular law was OK but don't have proof?

For the record, I can understand courts or prosecutors treating the bad advice given as a mitigating factor that might nullify any penalties for a later conviction, but it seems problematic to declare that USAs can simply give individual corporations freedom from the law; that seems like the rule of man and not laws to me anyway.

Von,

It's my understanding that your hypothetical is well litigated, legislated, and well understood. The fact that the Telcos want immunity tells me that they knew what they were doing was arguably illegal.

von: that part of the statute, as I understand it, basically says: if you believe in good faith that one of the conditions under which you can legally divulge someone else's communications obtains, then you're OK. Good faith is a defense.

What it does not say is: if you accept the government's assurance that something is "legal", without believing that any of the specific conditions have been met under which alone it's legal to divulge someone else's communications, then you're fine. Nor should it.

Who exactly are you claiming has the power to effectively make legal that which is illegal? You've already mentioned US Attorneys, but what about deputy USAs? What about federal judges? A regular district attorney? A regulatory committee member? Some guy who claims to be a USA but isn't? What if you claim that a USA told you breaking a particular law was OK but don't have proof?

I'm comfortable with the line drawn by the bill at hand:

If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed."

It's my understanding that your hypothetical is well litigated, legislated, and well understood. The fact that the Telcos want immunity tells me that they knew what they were doing was arguably illegal.

Where are you getting this information? Where was the "It's one month after 9-11, we're at war, and the President says this (and Congressional acts) justify his actions" case was litigated?

von: that part of the statute, as I understand it, basically says: if you believe in good faith that one of the conditions under which you can legally divulge someone else's communications obtains, then you're OK. Good faith is a defense.

That's not how I read the statute.

Again, however, I spent 10 seconds on it. I'm not qualified to say that your read is wrong, only that I can't agree with it under present circumstances. It reads:

(d) Defense.— A good faith reliance on— (1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization; (2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or (3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;

(1) doesn't apply; (2) seems to concern warrants and doesn't apply; and (3) appears to concern accidental behavior and other irrelevant acts and also doesn't apply.

Again, I am very aware that I could be completely the issues. This is not my area. But I really don't get your argument.

Should be:

"Again, I am very aware that I could be completely missing the issues. This is not my area. But I really don't get your argument."

It's time for bed. Se y'all tomorrow.

von: I know you're probably asleep, but: those things that do not apply are supposed to be *all* the cases in which a telco has the right to divulge information.

If I am allowed to kill people in self-defense, or while serving as an executioner, or while in the military and at war, and on no other occasion, and the murder/homicide statutes say: OK, if you believe in good faith that one of these 3 conditions obtains, then you have a complete defense, then those statutes provide a good faith defense.

The fact that they do not provide a defense to people who believe that while none of the conditions the statute allows them to kill people in actually obtain, it is nonetheless "legal" for them to kill people, is a good thing.

My thoughts on liability here:

1. Immunity means no lawsuits, or at least lawsuits dismissed on summary judgement. No immunity means lawsuits that could easily proceed to discovery.

a. Those lawsuits will be very expensive even if there's no civil liability in the end.

b. Discovery would mean inquiries into customer-monitoring practices that I suspect the telcos would like to keep under wraps for a number of reasons.

c. There'd be almost no way to prevent discovery, since the issue is pertinent to shareholder inspection rights. It'd be easy pickings.

2. You can't indemnify someone for criminal acts -- that's why the defense has to at least be "good faith." You can't contract for assassination, even if the contract stipulates,

(a) The parties agree to indemnify one another if The Murder as performed is subsequently found to be illegal in a court of law.

(b) The Assassin agrees that the Murder shall be carried out in full compliance with all applicable laws.

(c) The Assassin shall not be held liable by the Assassor for any consequential damages that may result from the Murder.

(d) The Assassor shall not bring any cause of action against the Assassin for the Murder as described in this Agreement.

3. The bill does not draw a bright line clarifying a good faith defense. It legalizes what is not legal based on a finding by the Executive Branch. If the Executive Branch was empowered to create preemptive legality by fiat, then Nixon got screwed.

4. Neither the telcos nor the Executive Branch were permitted or qualified to pass on the question of the legality of the alleged wiretaps. That is why FISA exists -- to decide precisely that question. A statement that "this is OK" by the Executive does not create legality, and particularly not when there is a statute specifically outlining a different judicial process to be followed.

5. To the best of my knowledge, a "good faith" defense would only apply in a situation where intent was an element of the offense; I don't believe that would be the case here, but I also don't know what specific offense the telcos would be accused of.

a. There's no agent-principal theory that gets the telcos or their executives off the hook here. They were on equal footing with the government, so they're not permitted to claim ignorance as an excuse. They obviously had plenty of time to consider the question before and during the wiretaps, so there's no urgency excuse, either. Their apparent failure to object creates implied consent.

b. Regardless, such a straightforward violation of the relevant laws clearly seems to violate fiduciary duties. Either the lawyers were negligent in allowing the illegal wiretaps, or the managers were negligent in ignoring the lawyers' advice, or both. There's no middle ground that I can see.

c. Even if the decision was reasonable w/r/t to the telcos' duties to their shareholders, it seems plausible that the telcos' customers would still have a cause of action based on the violation of their privacy.

6. There's at least a plausible argument that the telcos violated securities regulations by concealing their acquiescence in the wiretaps, even after the program had been disclosed. Their participation is materially relevant to the business -- because of the potential for lawsuits if nothing else. Intent isn't relevant to that disclosure requirement.

7. Directors have a duty, "Upon discovery of an illegal course of action... to object and, if the corporation does not correct the conduct, to resign." They're also required to seek counsel.

a. I'm willing to be that not many of the telco directors did either, even if they were informed of the program.

b. If they weren't informed, then the managers could be liable for not telling them, the directors could be liable for not having proper internal controls in place, or both.

c. Wiretaps are a fundamental business issue for telcos, so the executives can't argue ignorance without also being liable for negligence.

Von,
My information is pre 9/11, so if you want to argue that 9/11 changes all the legal history before it, have at it. I don't see why "one month after 9/11" changed the definition of an emergency. The emergency use of authorization letters and warrants was well understood before 9/11 and is based on a number of legal decisions, some (I believe) dating back to prior to WWII. I can't imagine anything authorizing extended surveillance without a warrant. I don't know what it would take for a corporate lawyer well versed in Telco history to decide what could justify that. IANAL, so my imagination is limited.

The Telcos have a long history with surveillance and the law. The fact that Telcos are asking for immunity tells me that they are not relying on the assurances they may have gotten. They knew better, IMHO.

I don't know what it would take for a corporate lawyer well versed in Telco history to decide what could justify that. IANAL, so my imagination is limited.

I can answer that -- this is literally first-semester law school stuff for any lawyer even remotely involved with telecom.

Glenn Greenwald pointed out that the federal judge presiding over the lawsuits held against them on this very issue:

AT&T's actions here violate the constitutional rights clearly established in Keith. 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.
It's really not even close, either. I think that's much of what's driving the issue here. It's immunity or nothing.

Adam:

Your posts are difficult to understand, and, with your discussions of your impressions of the laws governing a lawyer's fiduciary duties, you're spinning off into irrelevant topics.

So far as I can tell, your posts rely on the idea that the law was crystal clear on the issue. Your primary basis seems to be Greenwald's (incomplete) discussion of a District Court's recent ruling in a case involving AT&T. The ruling was on a motion to dismiss when the Plaintiff's allegations are accepted as true and every inference drawn in the Plaintiff's favor. Plaintiff alleged on information and belief that AT&T was intercepting every telephone call, including domestic and domestic calls. (That the particular allegation is made by "information and belief," which should raise a red flag.) And Greenwald misrepresents the ruling. Here's the ruling:

In United States v United States District Court, 407 US 297 (1972) (Keith), the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, id at 321, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” id at 308, and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country,” id. Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers.

The bolded portion is the key question. Keith doesn't address it.

I mean, if you agree with the principle, than your actual objection is not with what the bill holds, but the mechanism that it provides (effectively, in camera review by a District Court).

The problem isn't so much the mechanism, but what is being reviewed. If the court is only allowed to review whether the AG (or someone else) certified that the surveillance was legal and authorized by the president, not to review what was actually done, then that's a huge difference -- a blocking of meaningful review -- not just a matter of mechanism.

von:

Your posts are difficult to understand,

I applogize; if there's anything I can explain to make more clear or that you'd specifically like backed up with cites, please let me know.

and, with your discussions of your impressions of the laws governing a lawyer's fiduciary duties, you're spinning off into irrelevant topics.

Well, my long comment was discussing potential avenues of liability against the telcos in response to your posts above, and it largely concerns the fiduciary duties of executives -- in fact, I don't believe that I ever referred to lawyers' fiduciary duties anywhere.

My comment responding to JayS was merely to point out that -- IMO, YMMV, etcet. -- this is Telecom Law 101 stuff. I don't know if the lawyers in question fulfilled their fiduciary duties -- I just know that this is Telecom Law 101 stuff. And it's a mostly separate question as to whether the telcos' leadership fulfilled theirs.

In addition to what KCinDC just said -- FISA already provides for secret, in camera review by a specialized court. The problem is that the government didn't use the court that was it was statutorily required to use between Sept. 11, 2001, and Jan. 17, 2007.

The immunity bill doesn't require any review of the specific wiretaps in question or the program in general -- all it requires is that the telcos produce a piece of paper (or just provide "substantial evidence" that the paper existed) from the government telling them that the President (who's not empowered to pass on the question) authorized the request and determined that it was lawful.

It doesn't require that the President make legal analysis nor that he make any analysis at all -- just state his belief that the request is lawful. There's nothing to review there except "did that piece of paper probably exist?" If that's in camera review, it's not substantive in any way, and it's certainly not comparable to FISA review.

Let's face it. The Democratic leadership
really does share many of the views of the GOP leadership.

The Dems want teleco immunity, or this would be dead in the water already.

The prevailing view is that laws don't matter if the president says they don't matter. Shut up, kneel, and kiss the ring.

"any qualms one might have about some small party with no particular reason to know the law possibly believing the government cannot possibly apply to, say, Verizon."

Also, Congress did allow for the possibility that a telecom company might have difficulty determining whether a particular surveillance operation complied with the law. Telecom companies were allowed to rely on a finding by either the attorney general of the United States or the FISA court stating that the operation was legal.

In contrast, the current bill gives telecom companies immunity if they were told that the surveillance operation was "determined to be legal," regardless of who made the determination. In particular, it gives them immunity even if the determination was made by someone with no legal training. My guess is that the telecom companies were told that Bush had determined that the surveillance was legal.

What part of the Constitution that does not allow Congress to pass any ex post facto law does anyone not seem to understand. What was done here is an illegal act by Congress on top of an illegal act by the telecoms. How do we sue congressional representatives? Or do we have to have Pelosi allow for impeachment?

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