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.]
Posted 9:25 AM by Guest Blogger [link]