OK, Then, Senator Rockefeller -- At a Minimum, You Should Make Sure the Suits Against the Government Can Go Forward

Marty Lederman

There is much that I question, or disagree with, in Senator Rockefeller's explanation today of why his bill would provide telecom immunity from liability for unlawful conduct.

Most importantly, before concluding that it would be "unfair" to subject the companies to the liability the law calls for, shouldn't we make certain that the certifications presented to them, asking for their assistance, actually complied with the terms the companies knew FISA required? Senator Rockefeller writes: "If American business -- airlines, banks, utilities and many others -- were to decide that it would be too risky to comply with legally certified requests, or to insist on verifying every request in court, our intelligence collection could come to a screeching halt."

Yes, that's right. But that's why the statute doesn't require the companies to take any such extraordinary measures. If the companies were presented with certifications that satisfied the statutory prerequisites on their face, and that were not patently fraudulent, they should be able to rely on such government representations. (Of course, if the companies did rely on such FISA-compliant certifications, courts presumably would quickly dismiss the cases against them on that ground -- which leads one to wonder why they need immunity from such suits.)

But before any such immunity is conferred, Congress should at the very least ask whether the certifications made to the telecom officials and lawyers, about the ostensible lawfulness of the NSA program, included an Attorney General certification that "all statutory requirements have been met," as required by 18 USC 2511(s)(a)(ii). If, as appears likely, such surveillance was being conducted outside FISA, and in particular if it was premised on a so-called Commander-in-Chief authority to disregard FISA, it's hard to imagine how the AG could have made such a certification to the companies. More importantly, perhaps, and as the Senate Intelligence Committee Report itself suggests, during the period in 2004 when Jim Comey and Jack Goldsmith were threatening to resign because the NSA program was so patently unlawful, the certifications to the telcoms were signed not by the AG, or by the Acting AG, but by White House Counsel Alberto Gonzales. That is to say, it appears that the certifications issued during that period were manifestly inadequate under the statute, and the absence of an AG signature should have put the telecoms on clear notice that something smelled to high heaven. (Perhaps they were told that the AG was not available to sign because he was incapacitated in the hospital? Wouldn't that be something?)

If the telecoms went ahead and facilitated the NSA surveillance anyway, even when presented with certifications that were signed by Judge Gonzales, and even when (?) the certifications did not specify that "all statutory requirements have been met" (on this, I'm guessing, of course), should Congress really be eager to assume good faith and to afford them immunity?

In any event, Judge Rockefeller is absolutely correct about one important thing: the telecoms are not the real problem. The legality of the conduct of the government officials is what is truly important here. That's why this is the most important part of Senator Rockefeller's Op-Ed:

[L]awsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable.

That's exactly right.

And therefore, if Congress does grant the telecoms immunity, it must also, at the very least, take steps to ensure that the lawsuits against the government can proceed. Senator Rockefeller therefore should insist that his bill incorporate Senator Schumer's bill that would establish an express statutory cause of action to challenge the NSA program, and should also insist on a statutory amendment limiting the scope of any "state secrets" privilege to allow courts to adjudicate the legality of the NSA program without publicly revealing technological capabilities that must remain public.
Posted 8:59 AM by Marty Lederman [link]