Balkinization  

Wednesday, October 31, 2007

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.

Comments:

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.


If?

Senator Rockefeller has been read in on the TSP since the beginning. After pulling a "shocked, shocked" act when the NYT disclosed the TSP to al Qaeda, Rockefeller made a great show of submitting hundreds of questions to the NSA about the TSP and personally observing the program for himself.

Consequently, exactly what is it about the legality of TSP that Rockefeller does not personally know?

If there is something "illegal" about the TSP, why doesn't he say something?

What Rockefeller is really saying here is that the United States cannot afford to cripple the source of its critical signals intelligence by subjecting the telecoms to frivolous lawsuits, but subjecting an Administration of the opposite party to frivolous lawsuits is simply good politics.

What a piece of work this man is.
 

What is the cause of action against the government? AFAIK, the "lawsuits against the government [that] can go forward" amount to demands for admission and injunction against future snooping against the individual party who brought the suit.

.

If there is to be immunity, why not eliminate altogether the statutory causes of action against the telecoms -- looking ahead for the next need to snoop for national security, of course. Just in case there is domestic to domestic exchange of terrorist-related or other subversive communication.
 

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.

It's not clear to me that Congress can do so. The government continues to assert the state secrets doctrine, which appears to be a corollary to executive privilege. I'm afraid that any immunity bill containing such a provision would offer the appearance of a remedy only, not the substance. The ONLY way to attack this issue is through the telecoms.
 

It's really shameful that the bloody flag of 9/11 is being waved to justify this incredibly broad grant of immunity. As EFF said, if the only thing at issue here was patriotic cooperation by the telecoms in the immediate wake of 9/11, they wouldn't have even filed suit.

What possible justification can there be for a blanket grant of immunity based upon what the telecoms are doing this week or last week or the week before? If we truly need to revise our privacy laws, then go through the democratic process and change them.

Do we really want to set the precedent that it's ok for major corporations to break the law, provided they're willing to spend the cash to lobby Congress for amnesty after the fact?
 

I think mark field is on the right track here -can Congress pass a statute that authorizes suits against the government w/r/t NSA spying? Specifically, can Congress pass anything that gets over the Sixth Circuit's finding that the plaintiffs did not have standing to sue? http://www.techlawjournal.com/topstories/2007/20070706.asp
Standing is, in part, a constitutional requirement, right? I don't recall if the Sixth Circuit ruled on standing as a constitutional doctrine or as a prudential one, but this could be a problem as well. Thanks, Professor, as always for your insight.
 

From 2002 to 2006 Sen Rockerfeller received $4050 from the telcoms. From March to June 2007 he received $42,850.
Need we say more.

hal lewis
 

From 2002 to 2006 Sen Rockerfeller received $4050 from the telcoms. From March to June 2007 he received $42,850.
Need we say more.


I'm very opposed to Rockefeller's position here, but there's an obvious reason for this: the Democrats became the majority party and Rockefeller became the chair of the committee. I don't think we need to posit monetary corruption, just (?) the more insidious attitude by which Washington insiders protect those whom they perceive as "their own".
 

It's not clear to me that Congress can do so. The government continues to assert the state secrets doctrine, which appears to be a corollary to executive privilege. I'm afraid that any immunity bill containing such a provision would offer the appearance of a remedy only, not the substance.

Mark, respectfully, the state secrets privilege is not a claim of executive privilege. It is a judicially created privilege which dates back to Totten v. US and which is recognized by the federal cours pursuant to FRE 501. Congress clearly has the power to change it, limit its scope, or eliminate it altogether. I don't see any reason why the courts wouldn't follow Congress' directive if Congress limited or eliminated the privilege.
 

Rockefeller is a textbook fascist - as in binding the corporations and the state into one.

Context so that doesn't sound wild-eyed:
I'm on the complaint list here in Maine in case of PUC vs VZ. Haven't had a cell phone since I signed on. I have owned and operated a small ISP - first in Maine - for nearly 15 years.

The telecoms do have an obligation as a service provider to require proper warrants and proceedures. That's a no brainer - DOH! And that is what Verizon did not do.

Frankly, I think the State of Maine should revoke Verizon's charter. The Maine statue violated is a "paramount interest of the State". [So Rockefeller isn't the only fascist - the Utilities and Commerce Committee is too.]

My lawsuit (via PUC and Complaint) is not against the government; it is against Verizon: keep it straight. [What I saw in Bangor during the hearing - where the State of Maine took a dive - yeah, RICO would apply, but that would assume a certain legitimacy of government that was no longer present at several levels.]
 

Dilan, I'd like to think you're right, but I'm not at all sure you are. Totten, after all, involved an alleged contract with the President to spy on the enemy. The Court refused to enforce the contract because of the military nature of the agreement. Similarly, in Reynolds the claim was a secret mission by the Air Force (this claim was later revealed to be false).

All the cases I know of have arisen out of intelligence or military activity. Can Congress order disclosure of military secrets? I don't know, but I've always associated this privilege with the Executive.
 

[Rockefeller]: [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.

["Bart"]: If?

Senator Rockefeller has been read in on the TSP since the beginning.


So says someone who wants that to be true. But Rockefeller has denied that. Regardless, whether or not Rcokefeller was "read in" and regardless of what he was "read in" on, the legality of the actions stand (or fall) on their own legal merits.

["Bart"]: Consequently, exactly what is it about the legality of TSP that Rockefeller does not personally know?

Let's find out!

To be blunt about it, Rockefeller is a member of Congress (and one more friendly to the maladministration than he ought to be). He is not the judiciary, and in no position to decide on the legality of the maladministration's actions under the law.

Cheers,

Cheers,
 

cboldt:

What is the cause of action against the government?

50 USC § 1810.

Cheers,
 

Arne Langsetmo said...

["Bart"]: Consequently, exactly what is it about the legality of TSP that Rockefeller does not personally know?

To be blunt about it, Rockefeller is a member of Congress (and one more friendly to the maladministration than he ought to be). He is not the judiciary, and in no position to decide on the legality of the maladministration's actions under the law.


:::chuckle:::

Legislators ought to understand their own laws. If not, they can and do hire attorneys to assist them in this task.

The Constitution assumes this when it granted the House the power to impeach and the Senate the power to try and remove a President for high crimes and misdemeanors.

The judiciary is not the only branch which can interpret law. Both Congress and the President do so continuously to do their jobs. The judiciary simply gets the last word if a case or controversy is properly brought before them.
 

"Bart" DePalma:

["Bart"]: Consequently, exactly what is it about the legality of TSP that Rockefeller does not personally know?

To be blunt about it, Rockefeller is a member of Congress (and one more friendly to the maladministration than he ought to be). He is not the judiciary, and in no position to decide on the legality of the maladministration's actions under the law.

:::chuckle:::

Legislators ought to understand their own laws. If not, they can and do hire attorneys to assist them in this task.


Actually, the laws were not Rockefeller's. He wasn't around in the Senate in 1978.

But the laws are a matter of public record.

As you well know, "Bart" it is the duty to the courts to apply the laws to the facts.

And regardless of whose duty that is, that can hardly be done when the facts aren't known. Right now, with the most secretive maladministration in history, the only ones that actually know the facts are the maladministration, no matter how much the might bleat that "Congress has been fully read in" (and thus someone else whose opinion doesn't make a legal damn supposedly goes along with the maladministration's actions). This ought to be obvious. Why you pretend that this is a defence is beyond me. "But ... but ... he saaaaaiiiidddd I could do it!"..... The maladministration sounds more and more like a six-year-old child every day. Which might be what impresses you.

Cheers,
 

So, please, oh please, we beg, we pray, go throw your TV set away, and in its place you can install, a lovely bookcase on the wall.
Agen Judi Online Terpercaya
 

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