Balkinization  

Thursday, November 29, 2007

A Poor Substitute: Why Substituting the Government for the Telecoms Won’t Work

Guest Blogger

Justin Florence and Matthew Gerke

When the Senate takes up FISA next week, it must decide whether to grant retroactive immunity to telecom providers that participated in the Administration’s wiretapping program. The issue is divisive: some Democrats have pledged to filibuster any bill that includes retroactive immunity; the President has threatened to veto any bill that does not. Supporters of immunity argue that it would protect companies that relied in good faith on the government’s assurance that the program was legal. Opponents contend that granting immunity will prevent courts from ever uncovering the truth, and allow the Administration to escape any scrutiny.

Seeking a compromise that would answer both of these concerns, Senator Specter has proposed substituting the government as the defendant in place of the telecom companies in these cases. Senator Specter has the right goals, but substitution won’t accomplish them. Substitution – allowing someone to step into the shoes of a party and inherit that party’s legal position – works well when the substituted party has the same interests as the original party. That’s the case, for instance, when a party dies and his heir is substituted in, or a government official retires and her successor is substituted in. But substitution doesn’t work when the original and substituted parties have conflicting litigation interests and positions. And that’s the case between the telecoms and the Bush Administration.

The major litigation goal of the telecom companies is to avoid costly damages and legal fees; a secondary goal is to uphold their reputations as patriotic and law-abiding corporate citizens. In contrast, the litigation goal of the White House and Justice Department is to avoid the political and legal repercussions of revelations about its surveillance programs. This difference could play out in a couple of ways, were the Government substituted for the telecoms in the lawsuits.

First, a key issue in these cases is whether the telecoms acted in good-faith reliance on the Administration’s legal assurances. Under certain statutory provisions, and common law and constitutional doctrines, the telecoms could defend themselves by introducing as evidence documents provided to them by the Administration certifying the legality of their participation in the program. Although it would be in the telecoms’ clear interest to introduce these documents as a defense, it’s unlikely the White House and Justice Department would want to open their program (and their legal reasoning) to judicial scrutiny. Under a substitution plan, taxpayers – not Administration officials – would pay for any eventual damages. Because they wouldn’t be the ones paying, the Administration might prefer to lose the case and let taxpayers cover the bill rather than reveal potentially embarrassing documents.

Second, substituting the government for the telecoms would make it more likely that the cases would be dismissed on state secrets grounds. The state secrets privilege, as it is now applied, allows the government to ask a court to dismiss any lawsuit that is likely to reveal state secrets. The only purportedly secret evidence the telecoms would be likely to offer in litigation would be the legal assurances provided by the Administration. But the Administration knows all the secret details of the program, and a suit against the government could require looking into those details. As a result, a court is more likely to dismiss these cases on state secrets grounds if the government is the defendant; in fact, while cases against the telecoms have so far been allowed to proceed, a federal appeals court has dismissed a challenge against the NSA. Substitution may therefore have the opposite effect of that which is intended, by keeping cases out of court altogether rather than evaluating the legality of the Administration’s program.

If the Senate wants to transfer money from taxpayers to telecom subscribers, substitution makes sense. But if the Senate really wants a court to inquire into the surveillance program, and to hold the Administration, and not the telecoms, accountable for any illegality, there are better alternatives. The best compromise, as we have explained elsewhere, is to fix the state secrets privilege so that lawsuits against the Administration can proceed, and the telecoms can use the legal certifications given them by the Administration as a defense. If the Senate wants to make sure that the telecoms are protected financially, a state secrets fix could be combined with either indemnification, by which the government would reimburse the telecoms for liability and litigation costs, or damage caps. Unfortunately, Senator Specter’s substitution compromise is no substitute for allowing the lawsuits to proceed against the telecoms.

[Justin Florence and Matthew Gerke are Fellows at the Georgetown Center on National Security and the Law. They have provided members of the Senate Judiciary Committee with model FISA Amendments including a State Secrets Privilege Act.]

Comments:

Regardless of whether the telecoms or the government is the defendant, the key issues are the same - whether the plaintiffs were the targets of this surveillance and thus have standing and whether the government TSP was unlawful.

In order to answer these questions, the plaintiffs must be allowed discovery of the means, methods and targets of the TSP.

The means, methods and targets of the TSP are highly classified and clearly fall under the State Secrets Privilege.

The argument that the means, methods and targets of the TSP somehow become less secret because the defendant is a telecom instead of the government is not particularly strong. No court has allowed this backdooring. Consequently, the substitution of the government for the telecoms in these suits should not affect the exercise of the state secrets privilege.

The purpose of substitution legiislation is to keep the plaintiffs from financially punishing the telecoms for assisting in the defense of our country. Given that these cases generally fail for standing and even the most political judge hearing one of these cases has not attempted to pierce the state secrets doctrine to allow plaintiffs to troll through top secret NSA records, financially punishing the telecoms is the only real reason for this litigation. This litigation is akin to a SLAAP suit and should be stopped by Congress.

The job of oversight of top secret intelligence gathering programs belongs to Congress.
 

"Bart" just loves it that plaintiffs don't have 'standing' to sue, despite the fact that they may very well have been injured in fact, because it's all Sooper-Dooper Tippy-Toppy-Secret, you see.

This includes such as Maher Arar and Khalid el-Masri, who have no doubt as to their injuries, not to mention the folks that were told that they were illegally snooped on, but are required by the court to blank their minds as to this and fergettaboutit.....

Makes perfect sense to me ... after all, the state comes first: The Homeland Uber Alles....

Cheers,
 

Just a comment about persuasive writing. IMHO, the second argument is much stronger than the first one. I'd switch the order of presentation.
 

arne:

As a defense attorney, standing is one of the first things I check out in a new lawsuit and I do indeed love it when I can get a suit against my client kicked to the curb before it really begins.

As for the TSP, it is highly unlikely that any of the plaintiffs in these punitive suits have ever been targeted and have standing.

The only exception of which I am aware was an Oregon "Islamic charity" which had been previously convicted of being an al Qaeda funding front. In that case, a Justice attorney had a brain fart and allegedly disclosed a document which indicated the al Qaeda front was among the TSP targets, which makes perfect sense. However, I believe the judge in that case held that the document at issue was still classified and could not be published by the plaintiff.

Even in the case of the al Qaeda front, the plaintiff will have a difficult time proving actual damages unless the evidence with which they were convicted was derived in violation of the 4th Amendment from TSP surveillance. Justice would have to be stupid to do so, but it is possible.
 

Re Mr. DePalma's "an Oregon 'Islamic charity' which had been previously convicted of being an al Qaeda funding front," nothing in my few minutes of research has revealed a conviction. Charges fly but that's it. Does anyone have a source that goes beyond indictments?

Wikipedia says that all charges against the al-Haramain Foundation, which I believe to be the one referenced, were dropped by a federal judge, and that a UNSC committee has banned it.
 

The means, methods and targets of the TSP are highly classified and clearly fall under the State Secrets Privilege.

The central question-- and I don't know if we will ever get a straight answer from the courts on this-- is whether anything can be protected by the State Secrets Privilege if it is illegal.

The foundational state secrets cases involved either negligence during a legal activity (Reynolds) or breach of a legal contract with a secret agent (Totten).

The correct result would be for the courts to rule that if the surveillance programs are illegal, they can't be state secrets. Whatever powers the executive branch has to classify, they do not extend to programs that themselves violate the law. After all, if the President is violating the law, the correct remedy is to stop him, not allow him to keep it secret.
 

dilan:

I would suggest that the general rule that criminal activity does not fall under executive privilege would also apply to state secrets privilege. However, this would require a criminal prosecution requesting the evidence ala the Nixon case. I have doubts this doctrine would extend to ACLU civil fishing expeditions.

In reality, the most practical venue for oversight of classified foreign intelligence committees is by the congressional intelligence committees.
 

larry koenigsberg said...

You are correct and I had a poor memory about the legal status of the al-Haramain Foundation. This al Qeada front group was not convicted in a US criminal court. Rather Treasury and the UN have administratively shut down al-Haramain Foundation.

“Terrorism Financing: Origination, Organization, and Prevention: Saudi Arabia, Terrorist Financing and the War on Terror," a detailed analysis of al Qaeda and other jihadi financing provided to the Governmental Affairs Committee in 2003, includes an extensive analysis of al-Haramain Foundation.

The al-Haramain Foundation is exactly the type of foreign front organization which should be the target of intelligence gathering.
 

"Bart" DePalma:

I do indeed love it when I can get a suit against my client kicked to the curb before it really begins.

As you [should] know, "standing" is a prudential rule derived from the "cases" or "controversies" Constitutional limitation of the judicial power. A person must have an actual interest at stake and cause to participate in the judicial proceeding; sham parties are looked down on (although sometimes and under certain conditions the courts may recognise a substitute 'standing in' for the actual party in interest). When there is nothing that can be done, or the party's interests aren't at stake in any decision, they are turned away at the gate.

Saying (truthfully) that someone has no "standing" is not a bad thing; it is what you (as a lawyer and officer of the court) should do ... if you can show it.

But that is not the situation here. Here the parties are unarguably injured; the "block" to their standing is a notion that for someone to admit or allow evidence of their culpability for this would harm "national interests" and that their claims must bow to the common good, regardless of how well founded or of how injured they were (consider multimillion dollar suits for 'slander' against the torture and sexual abuse that Khalid el-Masri suffered). If a normal defendant in a civil suit was to raise a defence that giving up evidence of their wrongdoing would harm them in some other way regardless of their culpability, the courts would laugh their sorry a$$es right out of the courtroom.

What the U.S. is saying is not that the plaintiffs have no "standing" ... in fact they refuse to comment one way or another on the particular allegations. They say, "State secrets! State secrets! You can't prove 'standing'! Nya-nya-nyah!!!"

If the United States didn't wiretap these people, didn't kidnap and render Arar and torture el-Masri, then they ought to just say that. They don't ... and you know why.

The idea that plaintiffs suits ought to be tossed because there are certain "state secrets" that should not be divulged is a court-manufactured "privilege" (talk about "judicial activism") that has no basis in the Constitution or statutory law.

If there is to be a "state secrets privilege", it ought to be the legislature that decides, and determines the parameters of such.

If anyone needs any confirmation of this, they need look only at the actual "particulars" of the Reynolds case.

Cheers,
 

"punitive suits"

Oh, my!!!... I had been thinking that all civil suits were just love-ins with tons of patchouli oil and mantras being hummed....

Cheers,
 

I would suggest that the general rule that criminal activity does not fall under executive privilege would also apply to state secrets privilege. However, this would require....

...an administration willing to actually prosecute its own wrong-doing. Special counsel, please. That did the trick in Nixon's case.

Cheers,
 

Typo there, "Bart":

The only exception of which I am aware was an Oregon "Islamic charity" which had been previously convicted of being an al Qaeda funding front. [...] However, I believe the judge in that case held that the document at issue was still classified and could not be published by the plaintiff.

That's spelled "remembered". That's what the court ordered.

That's what's so frickin' bizarre about this stuff. Next thing you know, they'll say that el-Masri won't be allowed to recall his captivity, beatings, and torture, and Arar won't be allowed to remember his rendition from JFK and his days at the Damascus Sheraton....

If no one 'knows' about it, did a crime really occur? The perennial philosophical question ... for Solipsists.

Cheers,
 

arne:

1) Standing: We are talking about the frivolous civil suits against the telecoms concerning the TSP. We are not talking about the al Masri rendition case. Apart from arguably the al-Haramain Foundation, none of these plaintiffs have anything approaching standing as targets of the TSP.

2) Punitive Suits: Yes, punitive. These suits against the telecoms are similar to a broad array of so called "civil rights" suits or corporate SLAAP suits, which have very little legal merit but are brought to punish or shake down the target defendant by inflicting legal fees and bad publicity.
 

"Bart" DePalma:

1) Standing: We are talking about the frivolous civil suits against the telecoms concerning the TSP....

What's "frivolous" about a civil suit based on statutory violations of FISA?

... We are not talking about the al Masri rendition case. Apart from arguably the al-Haramain Foundation, none of these plaintiffs have anything approaching standing as targets of the TSP.

And you know this exactly how?!?!?

2) Punitive Suits: Yes, punitive. These suits against the telecoms are similar to a broad array of so called "civil rights" suits or corporate SLAAP [sic] suits,...

Ummmm, no. Or, rather, utter BS. A "SLAPP" (Strategic Lawsuit Against Public Participation) is filed by corporations against citizens to scare off the proletarian rabble that may be trying to get some changes. You've got it (besides the spelling) bass-ackwards.

... which have very little legal merit but are brought to punish or shake down the target defendant by inflicting legal fees and bad publicity.

The telecoms are far better placed to handle large lawsuits than the individual plaintiffs here.

And if they weren't (and even if they were), maybe they ought not to have broken the law....

You know, you don't have a BoR "right" to be free from lawsuits you might find annoying....

Cheers,
 

arne langsetmo said...

BD: 1) Standing: We are talking about the frivolous civil suits against the telecoms concerning the TSP....

What's "frivolous" about a civil suit based on statutory violations of FISA?


No standing and no evidence.

BD: ... We are not talking about the al Masri rendition case. Apart from arguably the al-Haramain Foundation, none of these plaintiffs have anything approaching standing as targets of the TSP.

And you know this exactly how?!?!?


Read the briefs. No evidence at all that the TSP targeted them.

2) Punitive Suits: Yes, punitive. These suits against the telecoms are similar to a broad array of so called "civil rights" suits or corporate SLAAP [sic] suits,...

Ummmm, no. Or, rather, utter BS. A "SLAPP" (Strategic Lawsuit Against Public Participation) is filed by corporations against citizens to scare off the proletarian rabble that may be trying to get some changes.


And how does a SLAPP suit scare off the defendants? Legal fees and bad publicity.

... which have very little legal merit but are brought to punish or shake down the target defendant by inflicting legal fees and bad publicity.

The telecoms are far better placed to handle large lawsuits than the individual plaintiffs here.


So what? Theft does not become less of a crime if the victim of the theft can afford it.

And if they weren't (and even if they were), maybe they ought not to have broken the law....

And your evidence is?
 

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