FISA Update: Do Not Let it Walk with the Zombie

By April 7, 2008Briefly Legal, Communications

Ted Frank of the American Enterprise Institute has just released a new “Liability Outlook” paper, “Zombie Litigation — Revivers and Retroactive Lawsuits Are Bad Ideas.” The article examines the impact of revising existing law, including through vitiation of existing immunity, to encourage litigation. If legislatures can go back and reimpose potential liability with impunity, then the granting of legal protections will fail to achieve its end in the first place, Frank contends.

It’s a timely topic, given the efforts in Michigan to eliminate protections for pharmaceutical companies enacted into law in 1996.

Frank also has a passage directly on the need to ensure telecom companies have immunity for assisting the government in post-9/11 surveillance of foreign communications.

Telecommunications companies relied upon the assurances of the president and the attorney general that the intelligence-gathering operation was legal. Perhaps those assurances will be determined in the future to be legally incorrect, but a government employee acting under such assurances would have qualified immunity from suit because of the lack of violation of a clearly established constitutional right.[49] Private industry, without the ability to second-guess the attorney general, should be equally protected. According to former attorneys general Benjamin Civiletti and Dick Thornburgh and former FBI and CIA director William Webster:

For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government’s call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government’s actions are legal. Given the threats we face in today’s world, this would be a perilous policy.[50]

The legislation is thus distinguishable from other retroactive legislation because it is protecting rather than upsetting settled expectations and reliance interests. If anything, it is the plaintiffs seeking billions of dollars who are violating norms against retroactive liability. This is especially true in this particular instance–because the telecommunications companies were acting in good faith, they would almost certainly win the lawsuits after extensive and expensive litigation under existing law. The retroactive immunity would therefore not shift the underlying rights of any parties but merely shut down a litigation discovery process that would give enemies of America a “road map as to how to avoid the surveillance.”[51]

Now compare that argumentation to that of immunity’s most vocal opponents, including the Daily Kos blogger, mcjoan, who in this post calls Senate Intelligence Chairman Jay Rockefeller “Jello Jay” and accuses him of “carrying the water” for the Administration.

P.S. We’ve put the relevant footnotes from Frank’s article in the extended entry below.

49. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
50. Benjamin Civiletti, Dick Thornburgh and William Webster, Surveillance Sanity,, Oct. 31, 2007; accord John Ashcroft, Uncle Sam on the Line, N.Y. TIMES, Nov. 5, 2007.
51. Dan Eggen and Ellen Nakashima, Bush Moves to Shield Telecommunications Firms, WASHINGTON POST A7, Mar. 2, 2008 (quoting President Bush).

Join the discussion 2 Comments

  • n0spam4me says:

    doesn’t anyone read the CONSTITUTION these days?
    Its called Ex Post Facto Law
    and its prohibited by the CONSTITUTION!
    Get a clue people!

    at least one telecom giant denied the administrations demand for INFORMATION and the sky did not fall!

    Why did the telecom companies simply roll over and VIOLTATE the contract they had with their customers?

  • Blaine Kinsey says:

    Potential defendants normally should be able to rely on the protection of statutes of limitation, but it is often the case that defendants have corrupted the statutes of limitation by withholding information that was relevant to their legal liability. For example, a drug manufacturer that withholds damaging information about a potentially harmful drug should not be able to hide behind a statute of limitations that is tied to the date of injury. Similarly, as Ted Frank acknowledges, the Catholic Church often covered up information about sexual abuses of children by priests when such abuses should have been reported to the proper legal authorities.

    Although I agree with much of Ted Frank’s commentary about retroactive legislation and statutes of limitation, he has not applied this rationale logically to the issue of retroactive immunity for the telecommunication providers that assisted with the Terrorist Surveillance Program. Mr. Frank makes an assumption that the telecommunication providers that assisted with the Terrorist Surveillance Program were acting in good faith by complying with the government’s request for surveillance, but he is frightened by the prospect of that assumption being tested in a court of law. The telecommunication providers helped to design the original FISA legislation, and the legal departments of these telecommunication providers were aware of the laws regarding electronic surveillance. When telecommunication providers are contesting Federal regulations or taxation policies that impinge on their financial interests, these telecommunication providers do not assume that the Federal government must be right, and these telecommunication providers are quite capable of employing a vast array of legal resources on their own behalf.

    Mr. Frank frets about the possibility of a litigation discovery process that would give enemies of America a road map as to how to avoid the surveillance, but he is aware that courts have methods to prevent the disclosure of information that might endanger the national security. The trial of Julius and Ethel Rosenberg did not reveal the design of atomic weapons, and litigation against the telecommunication providers that assisted with the Terrorist Surveillance Program would not disclose classified information about surveillance of terrorists. It is noteworthy that Mr. Frank did not mention that the national security wall around the Terrorist Surveillance Program prevents plaintiffs from obtaining information that would likely prove that their rights were violated under Title 18 U.S. Code, Section 2520. The plaintiffs in the lawsuits against the telecommunication providers that assisted with the Terrorist Surveillance Program face an uphill battle to overcome the government’s assertion of the “state secrets” privilege, but Mr. Frank is willing to subvert the rule of law based on yhis own misguided assumptions about whether the Terrorist Surveillance Program was legal. (Note: I am not an attorney.)

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