Posted by Orin Kerr:
How Much Difference Would The Proposed Immunity Deal Make?:
http://volokh.com/archives/archive_2007_12_16-2007_12_22.shtml#1198209709
Writing on the proposed deal to grant the telecom companies immunity
in the lawsuits filed against them for working with the NSA,
[1]lawprof Michael Dorf tries out an analogy:
Suppose an FBI agent approached a generally law-abiding citizen
that I'll call "Shmerizon," and the following conversation ensued.
FBI Agent: I'd like you to whack Shmarlos the Shmackal. He's a
terrorist.
Shmerizon: By whack, you mean . . . .
FBI Agent: You know what I mean.
Shmerizon: Uhm, isn't that illegal?
FBI Agent: I'm with the government. If I tell you to do this in the
interest of national security, it's not illegal. Understand?
Shmerizon proceeds to kill Shmarlos, even though another citizen,
Shmest, when presented with the same demand, refused to act without
a court order. Now suppose that instead of prosecuting Shmerizon
for murder, and without denying that what Shmerizon did was clearly
illegal at the time notwithstanding the FBI Agent's statements, the
government decides that Shermizon should be given retroactive
immunity for the murder because he shouldn't be punished for
helping out his government in time of need. Even assuming one finds
Shmerizon's plight sympathetic, shouldn't the most minimal
commitment to notions of government regularity require that any
immunity for Shmerizon be coupled with some form of accountability
on the part of the FBI Agent or his superiors who asked that
Shmerizon commit murder?
Is the only difference between this situation and the actual
current proposal for immunity for the phone companies that violated
FISA the fact that we think that murder, even of a bad guy like
Shmarlos the Shmackal, is properly illegal, while President Bush
and many in Congress think that FISA's restrictions were not just
unwise but so grossly unwise as to vindicate anyone who ignored
them?
The answer to Michael's question is "no," and I think Michael's
framing reveals a common misunderstanding about proposed immunity
deal. The telephone companies' liability turns out to be largely
distinct from the oft-debated question of whether the "Terrorist
Surveillance Program" was legal. As a result, I think the immunity
agreement is not quite the outrage many people in the blogosphere seem
to think it is. To see why, we need to get a bit into the weeds of the
surveillance statutes (oh goody!, you're thinking), but I hope it will
be worth it to understand what's going on.
Let's start with the lawsuits involving the so-called Terrorist
Surveillance Program, the warrantless wiretapping program disclosed by
the New York Times in December 2005. These lawsuits have long had a
major hurdle, the existence of [2]18 U.S.C. 2511(2)(a)(ii)(B), a
provision exempting the phone companies from liability for warantless
monitoring if the Attorney General gives them a certification
concluding such monitoring is legal. Here's what it says:
Notwithstanding any other law, providers of wire or electronic
communication service, their officers, employees, and agents,
landlords, custodians, or other persons, are authorized to provide
information, facilities, or technical assistance to persons
authorized by law to intercept wire, oral, or electronic
communications or to conduct electronic surveillance, as defined in
section 101 of the Foreign Intelligence Surveillance Act of 1978,
if such provider, its officers, employees, or agents, landlord,
custodian, or other specified person, has been provided with� . . .
a certification in writing by . . . the Attorney General of the
United States that no warrant or court order is required by law,
that all statutory requirements have been met, and that the
specified assistance is required[.]
Under this exception, the phone companies are "off the hook" (so to
speak) if they received the proper certification. Once they have the
certification, they can help the government without triggering any
liability. (In case you're wondering, I believe "persons authorized by
law" means government agents, not persons doing something that in fact
turns out to be lawful.) That's a really important exception, as press
reports have indicated recently that the government did in fact
provide the phone companies with a certification signed by the AG that
no warrant or court order was required. (Unfortunately I don't have a
link, because the clearest statement of this was something I heard on
NPR a few days ago; I couldn't find the link to a good report on it,
but I can search more if others doubt that there was in fact a
certification.)
Given 18 U.S.C. 2511(2)(a)(ii)(B), I think immunity for the lawsuits
against the telcos has very different stakes than just the legality of
the TSP. Assuming the accuracy of the press reports stating that there
was a certification, Congress has already explicitly provided immunity
for the telephone companies in these sorts of circumstances. The role
of the immunity agreement is just to cut the litigation short that
would prove the point.
Consider how the lawsuits might play out without an immunity deal.
The key item for discovery is of course the certification, which
presumably explains the program and states the AG's conclusion
(whether correct or not, and presumably without any reasoning) that
the program is legal. The plaintiffs will say that they need to see
the actual certification because they don't know if what the phone
companies did is consistent with it; the government and the telcos
will say that the state secrets privilege blocks the certification's
disclosure. Assuming the certification explains the parameter of the
program, that will surely be correct. Then the trial judge has to
figure out if he can determine if the program actually did fit within
the parameters of the certification, although he can't very well allow
discovery into the program without once again running into the state
secrets privilege. So presumably down the road the judge concludes he
has to dismiss the claim under the state secrets privilege, and then
the lawsuit spends another 5 years bouncing around the appellate
courts until other courts agree. And then multiply that by all the
other lawsuits, all of which presumably lead to the same outcome.
We don't know all the facts, obviously, and maybe I'm just missing
something obvious. But if I'm in the right ballpark, it seems to me
that immunity agreement just cuts short the litigation that should end
up being dismissed anyway without new legislation.
My sense is that the proposed immunity agreement would have a more
significant role with lawsuits involving the NSA Call Records program,
the program involving voluntary disclosure of non-content records. A
certification isn't enough here, because the disclosure of non-content
records is not covered by 18 U.S.C. 2511(2)(a)(ii)(B). Here the key
statute is the Stored Communications Act, which (to simplify things a
bit -- details [3]here and [4]here) bases liability on the provider's
good faith belief that there was an emergency that allowed the
disclosure.
The immunity language in the proposed statute is limited to cases in
which the telco was "described in a written request or directive from
the Attorney General or the head of an element of the intelligence
community (or the deputy of such person) to the electronic
communication service provider indicating that the activity was (I)
authorized by the President; and (II) determined to be lawful." If I
had to guess, I would guess that the head of the NSA or the AG or
someone wrote a written request to the phone companies asking them to
participate and disclose their call records, and explaining that they
thought there was an emergency that authorized the disclosure. The
phone company lawyers presumably determined that on the basis of the
government's request they had a good faith belief that there was in
fact an emergency.
If I'm right about this, the effect of the immunity deal would be to
cut short the inquiry into the individual telephone companies' good
faith in disclosing the records. I don't know exactly how you
determine the good faith of a corporate entity, but presumably that
requires some sort of hearing into the minds of the key
decisionmakers. I suppose they would have to take the stand and
testify as to what they were thinking, and a jury would have to say if
the thought the corporate bigwigs had a good faith belief (and
therefore there was no liability) or lacked such a belief (in which
case the liability could go a long way toward bankrupting the telcos).
If I'm right about this, I think the impact of an immunity deal
would be to (a) cut short TSP litigation that won't be going anywhere
anyway, and (b) to block the telcos from being subject to a "bet the
company" lawsuit hinging on their good faith. I think there are
arguments for or against the immunity in light of these stakes. But I
don't think it's a case of immunizing the telephone companies for a
blatantly illegal act, as Professor Dorf suggests with his analogy to
a hypothetical murder.
References
1. http://michaeldorf.org/2007/12/immunity-for-phone-companies.html
2.
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html
3.
http://www.orinkerr.com/2006/05/12/more-thoughts-on-the-legality-of-the-nsa-call-records-program/
4.
http://www.orinkerr.com/2006/05/12/civil-liability-and-the-nsa-call-records-program/
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