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Promoted from the diaries ~ smintheus

As mcjoan noted, The FISA plot thickens:  The Bushies have banned most senators from reading documents that offer legal grounds for warrantless surveillance. Sen. Dodd argued that all Senators should be allowed to read the documents before voting on telecom amnesty...and for good reason. Sen. Whitehouse read the documents, which he characterized as advocating a "legal doctrine for presidential lawbreaking."  

The FISA plot thickens again. Bush wants to keep Senators clueless because telecom immunity also gives Bush immunity. Telecom immunity includes by definition the approval of two condition precedents:  Bush had constitutional authority for the warrantless surveillance and the surveillance was determined to be lawful.  Under the doctrine of Congressional ratification, the effect of this approval is to retroactively "legalize" Bush's authority and program. This means that Bush may have immunity from prosecution.  Moreover, for years, Bush could not cite any statutory authority for his theory of unitary presidential prerogatives. Bush will now have precedent.

My judicial clerkship with state supremes taught me that arguments are a little like onions:  Sometimes you need to peel away the surface claims to uncover the real issues.

Bush argues that retroactive immunity is imperative to protect the telecoms from financial ruin from lawsuits and to avoid unfairly punishing patriotic telecoms which cooperated after receiving assurances of lawfulness. Neither of these grounds is presently an issue facing the telecoms. The law already immunizes telecoms and if financial ruin becomes an issue, there are remedies which have been used in the past which do not involve retroactive immunity.  In fact, there is no political or legislative precedent for retroactive immunity under these circumstances.

If the telecoms do not actually need immunity at this time to address issues that presently do not exist, what is Bush's real motive for pushing retroactive immunity now? The answer lies in what may happen to Bush if the telecoms are not provided immunity now:  The courts may review evidence showing that Bush acted illegally. Telecom immunity would provide grounds to dismiss the lawsuits to prevent the disclosure of this evidence. However, if the telecom immunity clause only provided immunity to telecoms, then Bush would not be protected from other forums --- like independent media, prosecutors and Congress --- that could investigate his domestic surveillance programs.

Coincidentally, the telecom immunity clause is structured to also provide retroactive immunity to Bush.

1.  There Is No Precedent For Telecom Immunity.
 
The first step in peeling away the top layer of Bush's deceit is to look at the historical precedent for Congress enacting a law to retroactively immunize prior illegal conduct by corporations.  Twice Congress considered and rejected retroactive immunity for companies who engaged in similar conduct and raised similar arguments to justify immunity.

Glenn Greenwald found "only one prior attempt" of Congress considering retroactive immunity for "lawbreaking corporations." In 1965, some lawmakers wanted to retroactively legalize some bank mergers which a court held were illegal under antitrust laws. Glenn noted the "virtually identical" circumstances between the bank anti-trust case and the telecom case.  In both cases, the corporations knew when "they broke the law that their conduct was illegal," and after a court ruled the companies violated the law, then they "ran to Congress asking for a special law to be passed legalizing their criminal behavior (on the ground that the American economy would be crippled if the mergers were undone)."

Senator Robert Kennedy opposed retroactive immunity for the banks as a dangerous precedent that could later be "logically applied to murder or any other crime."  Telecom immunity raises the same dangerous precedent that it will pave an easy road for immunity to be provided in another context.

However, the bank anti-trust case is not the only time that an industry sought and was refused retroactive immunity from Congress.

In the 1970s, the telegraph communications industry sought Congressional immunity for assisting our government in a case very analogous to the telecom industry today. There was a government operation known as Project SHAMROCK where the Armed Forces Security Agency and its successor, the National Security Agency (NSA) were provided "access to all Americans' incoming, outgoing, and transiting telegraphs." The NSA then analyzed 150,000 messages a month.

The "NSA had eavesdropped on the international communications of US citizens" as well as the communications of anti-war protesters.  Similar to Bush's domestic spying, SHAMROCK had a "watch list" of "people in the U.S. whose conversations would be identified and plucked out of the ether by NSA computers." There were 600 American citizens on this watch list, including "singer Joan Baez, pediatrician Benjamin Spock, actress Jane Fonda and the Rev. Martin Luther King Jr."

Similar to the proposed telecom immunity, Congress considered protecting the telegraph companies on the same grounds urged by Bush for telecom immunity.  The Church Committee considered not disclosing the names of the telegraph companies which had "cooperated purely out of patriotic motives" so that they could avoid lawsuits. The Church Committee "decided to leave the names in the report, even after repeated pressing by the Ford Administration that such disclosure would damage national security."

Congress actually investigated the illegal domestic surveillance and "widespread intelligence abuses by the CIA, FBI and NSA." It was the now-deceased Rep. Bella Abzug who hauled the telegraph companies before Congress in 1976 to investigate deeper into SHAMROCK. Abzug  subpoenaed current and former FBI and NSA officials as well as the CEOs of Western Union, ITT and RCA Global. President Ford whipped out executive privilege, which the FBI and NSA officials obeyed. For the first time in history, Ford also tried to cloak the private corporations with executive privilege, asking them to honor the privilege, but the companies testified and provided documents to Abzug.

Despite pressure, Congress did not provide immunity in exchange for testimony. There was no immunity (pdf file) for witnesses to testify before the Senate Select Church Committee, no civil immunity and no criminal immunity despite pressure for Congress to enact legislation to protect the companies. The remedy by Congress was not immunity, but Congressional insistence that the intelligence community must comply with laws, which was reinforced by enacting FISA.

So, twice Congress considered providing retroactive immunity for prior illegal acts by domestic industries but ultimately rejected. As Senator Dodds noted, this telecom proposal would provide "unprecedented immunity."

This is important because the US Supreme Court does consider historical legislative practices when interpreting the nature and scope of Congressional constitutional authority.  Thus far, it appears that Congress does not have a legislative practice of providing retroactive immunity to corporations under these circumstances.

Analysis continues below the fold.

2.  The Reasons Stated For Telecom Immunity Are Just More Bushit.

Given that there is no legislative precedent for retroactive immunity, is there something about this case which makes legislative immunity imperative? The Bush administration has provided two reasons for immunity:  financial and legal fairness.

Financial

The Bush team argue impending financial doom for the telecom industry should lawsuits be permitted to continue. However, at this time, the financial impact is speculative (pdf file) with a market that "seems unconcerned" about the lawsuits filed against telecoms:

For example, when the complaint in Hepting v. AT&T Corp. was filed and when AT&T's motion to dismiss the suit was denied, AT&T's stock price remained essentially unaffected. The entirety of the Securities and Exchange Commission's regulatory system requiring public filings and disclosures is premised on the idea that, when the relevant information is available publicly, the market is the most effective indicator of the value of a corporation. That the stock price of AT&T was unaffected by the suit indicates the market's determination that the company's financial footing remains sound, despite the potential liability.

Moreover, telecommunications carriers have survived enormous payouts in class action suits in the past. For example, in September of this year, Sprint received preliminary approval from the court for a $30 million class-action settlement. And in 1994, AT&T agreed to pay a $100 million settlement. Just as they have for the other risks incumbent in their business, telecommunications carriers have liability insurance to protect them in the event of an adverse civil judgment. And if, at some point in the future, a series of judgments comes to present a threat of widespread bankruptcy in the telecommunications industry, the government may take action at that time. But any preemptive liability shield is premature and unneeded.

Thus, should the telecom lawsuits proceed and if damages are awarded by the courts and if the damages are not covered by telecom liability insurance, and if Congress then determines that a bailout is needed for the industry, then Congress has the authority to legislate funding to the industry, thus preserving the plaintiffs' right to a judicial remedy and the public's right to a transparent government. As Sen. Feingold notes:

If the companies engaged in such widespread illegal conduct that the damages would be enormous, Congress can intervene to limit the damages. That's a far more appropriate response than simply giving the companies a free pass for any illegal conduct.

Moreover, if the concern is financial liability, why is the immunity so broad that "cases will be dismissed even if they do not seek money damages but only declaratory and injunctive relief."   The immunity would also bar states  from retroactively and prospectively "enforcing their own privacy laws" and "kill current state level investigations into whether laws" were violated by warrantless spying. And, the immunity would cover anyone who assists the intelligence community, including telecoms, "a landlord, or other custodian" when it is certified to "the court that the person was acting in accordance with a government order under FISA."

Legal Fairness

Supporters of telecom immunity argue "the legislation is needed to avoid unfair punishment of private firms that took part in good-faith efforts to assist the government" based upon patriotic motives.

Government assurances were similarly provided to the telegraph participants of SHAMROCK. Similar to the telecom industry, the telegraph companies complied with government requests based on patriotism because the government maintained it was "important to national security." Yet, claims of patriotism and government assurances were not sufficient grounds to provide immunity to the SHAMROCK companies.

Moreover, unlike the SHAMROCK telegraph companies, the telecoms are already provided immunity by existing law, as noted by Sen. Feingold, who states that Bush's argument of the need for immunity is simply a myth:

Existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects the companies and Americans' privacy by encouraging the companies to comply with legitimate requests but not to comply with requests that don’t meet the requirements laid out in the law."

Senator Feingold addresses a few more myths advocated by Bush team to "justify" telecom immunity:

Myth: If we don't pass retroactive immunity, the government will lose companies' cooperation in the future.

Reality: The immunity provision in current law gives telephone companies an ironclad defense if they received a government certification that meets certain clear requirements. It holds companies liable for complying with non-compliant government requests precisely because we don’t want the companies to cooperate with illegal government programs. Preventing that kind of cooperation, and protecting Americans from illegitimate government snooping, is one of the main reasons FISA was passed.

Myth: The bill's immunity provision is appropriate given the heightened urgency and threat level in the immediate aftermath of 9-11.

Reality: The bill does not focus on the "immediate aftermath" of 9-11; it would immunize illegal conduct even if that conduct occurred five years after 9-11.

Myth: The common law immunizes private parties that give requested assistance to government officials.

Reality: If that were true, there would be no need for Congress to step in. The truth is that the common law sometimes immunizes private parties that give assistance to government officials where that assistance is compelled by law. However, the common law never immunizes private parties for providing assistance to government officials when that assistance is clearly prohibited by law.

Myth: The telephone companies will not be able to defend themselves because the government has invoked the state secrets privilege.

Reality: There is no precedent to suggest that a court would rule against a defendant when there is privileged evidence that could possibly exonerate that defendant. That simply is not how courts handle such cases. But even if that were a risk, the state secrets problem should be addressed directly, in a manner that is fair to both parties.

3.  Bush's Immunity Is A Condition Precedent To Telecom Immunity.

There is no legislative precedent for retroactive telecom immunity and the reasons stated for immunity are not just mythical Bushspeak, but rejected before by Congress in the virtually identical SHAMROCK case.  So, what is the real motive for Bush pushing telecom immunity down the throats of Congress?

The structure of the telecom immunity clause predicates immunity on the underlying conditions precedent that Bush had authority and the surveillance was lawful.  A condition precedent generally refers to "an event or state of affairs that is required before something else will occur."

The telecom immunity is comprised of three elements which the AG must certify to the court before the telecom is entitled to immunity:  (1) the telecom must have provided assistance for an intelligence activity involving communications that Bush authorized during 2001-2007, which was designed to detect or prevent a terrorist attack or preparations and (2) the telecom assistance was described in a "written request or directive" from the AG or an "element of the intelligence community" to the telecom provider; and (3) this request or directive "indicated" that the activity was "authorized" by Bush and "determined to be lawful." [The proposed immunity of Section 202 of s. 2248 sponsored by Senator Rockefeller can be found at Thomas.  Thomas does not appear to keep urls active so to find the bill text, you need to start at home page, select bills sponsored by Sen. Rockefeller, and click through to s. 2248.]

In other words, if the AG does not certify that the telecom received "indications" that the surveillance was authorized by Bush and determined to be lawful, then the telecom is not entitled to immunity. However, the elements of authority and lawfulness are presumed to be true if the AG provides certification, which does not require evidence to prove that Bush had constitutional authority or that the surveillance program was lawful. Given that the standard of proof is "indications," the AG may feel warranted in making these certifications as long as Bush even suggests that he has authority and that the surveillance is legal.  These are the elephants in the room that Bush does not want addressed in courts where parties may call witnesses or produce documents as evidence that Bush did not have constitutional authority or a lawful surveillance program.

4.  Presidential Authority & Lawfulness Are Not Based On Evidence , But Merely "Indications" Proffered By Government Officials.  

As Sen. Feingold stated, the existing law encourages companies to comply with legitimate government requests for surveillance.  The big difference between the bank anti-trust case and the telegraph and telecom cases is that the banking industry decided to break the law apparently without any interaction with the government and then came crying for immunity whereas the telegraph and telecom companies agreed to break the law with some prodding by the Bush administration.  

The immunity clause provides some clues as to how Bush operated to obtain telecom assistance during 2001-2007 because if Bush wants this proposed legislation to be an effective CYA, then the immunity clause must be worded to ensure that the methods he used to procure telecom assistance in the past is covered by the immunity now proposed for telecoms.

The proposed immunity reveals that the government requested assistance from the telecoms by providing a written or oral request from any of several designated government persons who merely "indicated" that the activity was "authorized" by Bush and "determined to be lawful."

Indication is defined to include express statements as well as suggestions or demonstrations of the "necessity, expedience, or advisability" of cooperating with the government. For example, when Bush peddled his claims that Iraq was tied to 9/11 as justification for war, he generally implied or "indicated" that there was a nexus between the two without expressly making an unequivocal declaratory statement.  An indication of a fact is absolutely no standard of proof at all. Given that Mr. Decider believes that he has unilateral presidential prerogatives to authorize anything and that even his violations of clear laws are legal in his mind, governmental assurances that indicate the spying was authorized by Bush and "determined to be lawful" are meaningless.

Moreover, Senator Feingold notes that the telecoms know whether a government request is lawful or not:

Myth: Telephone companies should not be expected to know whether the government's request for assistance was lawful.

Reality: Telephone companies have a long history of receiving requests for assistance from the government. In the 1970s, they worked with Congress to devise a law that tells them exactly which government requests they should honor, in terms that are clear and easy to follow. And they have lawyers who are well-paid to compare government requests with the requirements of the law.

So, now we have telecom immunity which may be granted if the AG certifies as a fact the existence of presidential authority and program lawfulness. Given that no evidence is required to establish these elements, we essentially have a legislative statement that Bush had constitutional authority to order the warrantless domestic telecom surveillance program, which was determined to be a lawful surveillance program. Bush may argue that this Congressional statement constitutes a ratification.

5.  The Telecom Immunity May Be Interpreted As Congressional Ratification That Bush Had Authority To Unilaterally Order Domestic Surveillance And That The Domestic Surveillance Was Lawful.

Telecom immunity is a win-win for Bush because it protects the profits of his corporate buddies while also providing immunity to Bush under a doctrine known as Congressional ratification.  From the beginning of Bush's push to "reform" FISA in February 2006, he wanted "legislation to approve the program retroactively, much as Congress eventually approved Abraham Lincoln's suspension of habeas corpus during the Civil War."  Even some lawmakers were concerned that Bush wanted to "retroactively legitimize the program before Congress learned it's scope."  Where is that concern now that Bush is pushing telecom immunity while refusing to permit all Senators to read Bush's legal theory advocating the lawfulness of his surveillance program?

Congressional ratification is one of the legal doctrines considered by the US Supreme Court when a president's actions are challenged as illegal.

When a President's action is challenged as illegal, the 1st question addressed by the court is whether the "action of the Executive was authorized" at the time the President acted? The answer is that the Bush team has never been able to cite one statutory or constitutional provision which expressly authorized Bush to order warrantless domestic spying. If the "action of the Executive" was "not originally authorized," as here, then the 2nd question addressed by the court is was the president's action subsequently confirmed or ratified by Congress?

Congressional ratification is simply Congress enacting a law that approves, confirms or recognizes -- either expressly or by implication -- Bush's authority to approve warrantless surveillance and the lawfulness of his telecom domestic surveillance program.

As stated by the Supremes:  

"It is well settled that Congress may, by enactment not otherwise inappropriate, 'ratify * * * acts which it might have authorized,'... and give the force of law to official action unauthorized when taken."

Congress may ratify prior unlawful, illegal or unauthorized acts by enacting a subsequent law that approves, confirms or recognizes the earlier actions.   Ratification is a curative device to fix the "irregularity, defect, or want of original authority" for Bush's warrantless spying that would be illegal, unlawful or unauthorized absent ratification.   As a curative device, the ratification doctrine is based upon the assumption that if Congress had the constitutional power to pass a law in 2001 that would have authorized the actions taken by Bush, then Congress may pass a law in 2008 to remedy the fact that Bush did not have "original authority" in 2001. The theory is that in 2001, some branch, agency or official of the US government had original authority for the actions committed by Bush. That is, the legal authority was floating around somewhere in the federal government in 2001, but simply was not executed by the correct person or entity and so now it is reasonable to just fix that little technicality.

Congressional ratification has not been limited to just tidying up little oversights. It has been used when an executive order authorized an executive branch agency to conduct action that was contrary to laws enacted by Congress. And, it has been used to legalize President Lincoln's usurpation of congressional constitutional duties during a time of war.

Congressional ratification may be express or implied and does not need to use the word ratification. Here, one issue is whether Congress had vested Bush with authority to create a warrantless domestic spying program that involved telecoms. If there is no legislative authority for Bush to "authorize" the creation or approval of this program by Executive Order or other means, then one may argue that Bush had unconstitutionally delegated legislative power to himself or that he violated the FISA law, and therefore his actions were not lawful.

Isbrandtsen-Moller Co. v. United States, 300 U.S. 139 (1937) involved a similar issue:  Whether Congress had vested the President with authority to use an Executive Order to abolish a shipping board and transfer its functions to an executive officer in the federal department. The Supremes held that even if the president's actions were not authorized by law when he acted, Congress subsequently provided implied ratification by recognizing the validity of the transfer. Congress passed a law that referenced the functions of the board now being vested in the federal department pursuant to Executive Order.  The court also noted that Congress had appropriated funds for salaries and expenses for the federal department. The theory is that Congress would not have recognized the transfer or approved funds for the department if the transfer itself was illegal, and therefore, approval of the transfer or funds constituted an implied approval of the president's actions.

Another example of implied ratification is when a government agency or official did not have legal authority at the time that it ordered the creation and execution of project X and then subsequently Congress passes a law that approves a major component of project X or the actions taken by the government related to project X, as discussed in the Supreme Court decision of Mattingly (1878).  The rationale is that Congress would not have approved a major component of a project if the project itself was not legal.

Bush may argue that telecom immunity constitutes Congressional ratification of the two condition precedents referenced in the bill: constitutional authority for Bush to authorize the warrantless domestic surveillance and the determination of lawfulness. Bush may argue that Congress would not have approved telecom immunity if he did not have authority or if the program was not lawful.

Bush has argued for years that his domestic surveillance program was lawful based upon his theory that a president is vested by the constitution with prerogatives to act unilaterally. Bush was never able to cite any legal precedent or statute to vest a president with this authority.  Based upon the facts of this case, Congress will now provide that legal authority by ratification, and further expand presidential powers at the expense of the legislative and judicial branches.

The legal effect of Congressional ratification is that the new telecom immunity is retroactively applied to protect Bush even if the law does not expressly state that the provisions are retroactive.  

An inherent component of Congressional ratification is that the new law is deemed retroactive because it is designed to cure a prior "defect" by providing Bush with the "original authority" that he did not have when he acted in 2001-2007. Congressional ratification is a legal "time machine" that tags acts that were illegal or unlawful when committed as now "legal" and then backdates that status of legality to the time when the acts were committed. Thus, Congress can ratify in 2008 that the potentially unlawful or illegal acts that Bush committed during 2001-2007 are now legal or lawful.  

6.  Why Democrats May Support Telecom Immunity.

emptywheel also noted that there may not be massive liability for the telecoms if most of the wiretapping were certified. Rather, it would be our government that pays for damages, not the telecoms.  So, the Democrats may be worried about our government having to pay billions of dollars in settlements of telecom suits while Bush is worried about the evidence in the lawsuits that could be used to hold him politically or legally accountable for violating the law.

So, why did Senator Rockefeller develop a compromise with Bush team to provide retroactive immunity? It is surprising given that "Rockefeller was originally disturbed enough about the secret spying programs that he hand-wrote a letter to Dick Cheney in 2003, expressing his concerns about the program's legality."  

It is interesting that telecom contributions to Rockefeller went from zip to pretty good "around the same time that the companies began lobbying Congress to grant them retroactive immunity from lawsuits seeking billions for their alleged participation in secret, warrantless surveillance programs that targeted Americans."

Wired noted that it may not seem like big donations for a millionaire, but he is up for election in 2008 and plans to run on donations rather than his own money:

Jay Rockefeller is a multimillionaire senator and great-grandson of oil baron and philanthropist John D. Rockefeller. But in recent campaigns, he has downplayed his personal wealth in one of the nation's poorest states.

"I will not spend one single dime of any money that I have," he said in 2002. "So that I if I don't raise money, I won't spend money. I am on exactly the same playing field, so to speak, with anybody else who runs for office."

In terms of political precedent, "when previous Republican administrations were accused of illegality in the FBI and CIA spying abuses of the 1970s or the Iran-Contra affair of the 1980s, Democrats in Congress launched investigations or pushed for legislative reforms."  Now, "faced with admissions by several telecommunication companies that they assisted the Bush administration in warrantless spying on Americans, leaders of the Senate intelligence committee took a much different tack -- proposing legislation that would grant those companies retroactive immunity from prosecution or lawsuits."

There is no need to quickly enact telecom immunity or to ignore the absence of political and legislative precedent to support such immunity.  At the very least, Congress may implement a freeze of the telecom lawsuits (pdf file) to provide time to develop a factual record and debate the issues related to retroactive immunity for telecoms, and potentially for Bush as well. Congress has used this tool before to "freeze the litigation to where it stands now as a procedural 'time out' and the US Supreme Court upheld as constitutional."

Originally posted to Daily Kos on Mon Jan 07, 2008 at 10:32 AM PST.

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