Four Senators recently introduced a bill that would resurrect litigation against U.S. telecom companies that complied with U.S. government orders to assist in electronic surveillance of suspected terrorists overseas. The bill sends a terrible message that legal immunity, once established, can still be taken away by Congress in the pursuit of political goals.  The legislation also reminds private citizens who want to help fights terrorism that they should expect to be sued for their trouble.

Sen. Chris Dodd (D-CT) introduced S. 1725, the Retroactive Immunity Repeal Act, on September 29 joined by Sens. Feingold, Leahy and Merkley. The bill would “remove retroactive immunity protection for electronic communications service providers that participated in the Terrorist Surveillance Program and for other purposes.” (Senators’ news release.) Vitiating legally established immunity is disturbing in any context, but in this case, it’s especially troubling because it would allow the continuation of legal harassment of good corporate citizens.

The Senators are reviving a debate settled in 2008 when Congress passed the FISA Amendments Act, H.R. 6304, to extend the federal authority (Foreign Intelligence Surveillance Act, or FISA) to conduct surveillance of overseas electronic communications. These communications — phone calls, text messages, etc. — may have had a U.S. nexus, i.e., crossing through U.S. network or involving foreigners calling into the United States to speak to a non-citizen.  However, as applied to overseas communications, the Justice Department held that this surveillance did not require a judicial warrant; passage of the FISA Amendments reaffirmed that position.

A key issue in the FISA reauthorization was whether civil immunity should be granted to telecommunications companies that complied with federal orders to assist in the surveillance.  Lawmakers supported granting civil immunity in the wake of the September 11 terrorism attacks, concluding that companies should not be punished for helping to stop terrorism, especially when the companies are following what they understand to be legal orders. (continue reading…)

San Francisco Chronicle, “Telecom immunity upheld as judge tosses suits“:

A federal judge on Wednesday upheld an immunity law for telecommunications companies and dismissed dozens of lawsuits by customers who accused AT&T and other carriers of collaborating in illegal government wiretapping.

The law, pushed through Congress last year by President George W. Bush, validly authorized the attorney general to protect phone companies from liability without having to publicly disclose whether a company had actually allowed the government to eavesdrop on its customers, said Chief U.S. District Judge Vaughn Walker of San Francisco.

Hours later, however, Walker rejected the Obama administration’s attempt to sidetrack another suit challenging the legality of Bush’s electronic surveillance program and scheduled a hearing for Sept. 1.

The law, the FISA Amendments Act, passed through Congress last year with strong bipartisan support after thorough debate. Critics of the Administration’s foreign policy had targeted the telecommunications companies in the courts as a tactic in their attack against U.S. surveillance practices. The law granted civil immunity to the telecoms if they demonstrated they were following an official government request to assist in the surveillance.*

In passing the law that led to Judge Walker’s ruling, Congress affirmed the important principle that private companies should not be punished for acting in good faith when following legitimate government requests for assistance in defending the nation from terrorist attacks. Good corporate citizenship must not be an invitation for activists and trial lawyers to sue private parties as proxies in foreign policy and national security disputes.

UPDATE (noon): Judge Walker’s ruling is available here, posted by the Electronic Frontier Foundation. Of course, the predictable reaction, “EFF and ACLU Planning to Appeal Dismissal of Dozens of Spying Cases”

*The EFF and ACLU speak in terms of surveillance of U.S. citizens, but in fact the targeted surveillance was overseas communications and communications among non-U.S. citizens.

The FISA Amendments Act, H.R. 6304, signed into law in July is beginning to work its intended effect on lawsuits against the telecommunication companies that assisted in government monitoring of foreign electronic communications after the terrorist attacks of September 11, 2001. The legislation provided retroactive civil immunity to the telecoms, provided they could demonstrate they were acting on instruction from federal authorities.

Today, the 9th U.S. Circuit Court of Appeals sent the most prominent of the anti-telecom lawsuits, the class-action Hepting v. AT&T, back to district court. According to a report in Wired, the order simply stated:

In light of the FISA Amendments Act of 2008, Pub. L. No. 10-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

Presumably now AT&T will provide the needed documentation and District Judge Vaughn Walker will dismiss the lawsuit.

As Hans Bader of the Competitive Enterprise Institute discusses today at the OpenMarkets.org blog, the granting of retroactive civil immunity is clearly constitutional. It’s also a matter of good public policy: Punishing private companies for legally assisting in surveillance of America’s enemies would chill further assistance. And it’s certainly not a good idea to reward people — in this case, trial lawyers, privacy absolutists and leftist opponents of a strong national defense — who pursue policy disagreements in the courts, attacking private enterprise in the process.

Previous posts here.

Upon President Bush’s signing of H.R. 6304, the ACLU immediately filed suit in U.S. District Court for the Southern District of New York, seeking a court order to declare the law unconstitutional and stop it cold. The ACLU’s news release is here. The actual complaint in Amnesty v. McDonnell is available here.

We don’t intend to follow this aspect of the FISA debate because it’s the aggrieved versus government and the issue of civil immunity for the private sector is not raised. (As this New York Sun story notes.) Perhaps that side of the litigation will be handled by the Electronic Frontier Foundation, which for now is just protesting the new law in order to raise money.

Although, the congeries joining the ACLU in its suit is interesting and colorful.

The SEIU, eh? They’re just so busy with everything these days.

President Bush signed H.R. 6304, the FISA Amendments Act, into law this afternoon in the Rose Garden. His remarks are here.

An accurate and quick summary from CQ Politics.

 With more and more news accounts again today misleadingly referring to “domestic spying program,” it’s worth turning, again, to Andrew C. McCarthy, a former federal prosecutor for the real history and legal context to the FISA debate. He notes that federal courts have consistently held that presidents maintained constitutional authority to conduct warrantless monitoring of hostile foreign agents, and both President Carter and President Clinton operated with that authority. And again, the program is of foreign surveillance.

From “Finally, a Surveillance Pass“:

The Constitution permits warrantless searches in exigencies far less consequential than protecting the nation against foreign attack. Indeed, highly intrusive searches of not only property (including computers with stored email) but also of American citizens crossing our borders have long been routine. Moreover, in marked contrast to Watergate era domestic spying abuses, the Bush administration briefed the relevant congressional leaders of both parties throughout the NSA program’s duration.

None of that mattered to privacy extremists and anti-Bush activists. Once the program was exposed, they slandered a vital effort to safeguard the nation as a “domestic spying” regime that targeted ordinary, law-abiding Americans. Their allies in Congress didn’t dare try to shut the program down, though, because they well knew those ordinary, law-abiding Americans — Americans who understood that 9/11 happened precisely because overseas terror masters used today’s communications networks to guide the activities of jihadists they’d embedded in our midst — want our intelligence community to conduct aggressive surveillance.

That, however, did not chagrin opponents. They did what they always do when democratic means are unpromising: they marched into court. And when suing the government proved frustrating because of standing requirements and state-secrets restrictions, they simply sued the telecoms.

Read the whole thing.

Reaction and excerpts from statements and news releases on the Senate passage Wednesday of H.R. 6304, the FISA Amendments Act.

• President Bush’s statement, “President Bush Pleased by Passage of FISA Reform Legislation“: “This bill will help our intelligence professionals learn who the terrorists are talking to, what they’re saying, and what they’re planning. It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government. It will uphold our most solemn obligation as officials of the federal government to protect the American people.”

• Sen. Jay Rockefeller news release, “Rockefeller Calls Final Pasage of New FISA Law Critical for National Security“: “Far too often, national security issues have been sidelined or delayed because of accusations and attempts to score political points. That’s what makes today so remarkable. Both sides have come together for the sake of national security and passed a bill that will modernize the nation’s surveillance laws so that they are effective and relevant in the 21st Century.

• Sen. Kit Bond news release, “Bond hails Senate passage of surveillance bill“:  Bond praised his colleagues for rejecting the misinformation spread by left-wing fringe groups like Moveon.org and instead putting our intelligence community back in the business of listening in on foreign terrorist in foreign countries.  Before the final vote, the Senate again rejected attempts to kill the terrorist tracking program by stripping civil liability protection for telecommunications providers.  Bond stressed that it is only right to give these patriotic companies who assisted the government in the aftermath of the 9-11 attacks protection from frivolous law suits.  Also, civil liability protection is critical to the future cooperation of our private partners, without whom the terrorist surveillance program could not operate.

• ACLU news release, “Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies“: “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.” 

• Electronic Frontier Foundation news release, “Senate Joins House in Caving to White House Immunity Demands…Telecoms Let Off the Hook for Illegal Spying – For Now”: “”We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president’s illegal surveillance is not over,” said EFF Senior Staff Attorney Kurt Opsahl. “Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”

In the FISA debate, Sen. Orrin Hatch (R-UT) has been a clear and consistent speaker on the importance of providing immunity to telecommunications companies that assisted in surveillance of foreign communications. His remarks today on the Senate floor made the case in as straight-forward of way as we’ve seen, and he also punched holes in the more conspiratorial arguments that comes from the left.

From his prepared remarks:

It’s very simple – Congress should not condone oversight through litigation. The lawsuits seize on the President’s brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn’t exist. Yet we consistently hear as justification for the apparent paranoia that some wiretaps were warrantless. But lest we forget, the 4th Amendment does not proscribe warrantless searches, it proscribes unreasonable searches.

The fact is the President created an early warning system to prevent future attacks;
essentially a terrorist smoke detector. But rather than appreciate the protection it offered,
critics rushed to pull out the batteries so that it couldn’t work. My feelings of admiration
and respect for the companies who did their part to defend America are well known. As
I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves
a round of applause and a helping hand, not a slap in the face and a kick to the gut.

As an antidote to the pyretic claims about the police state, the Senator remarks:

In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government? Can any of the plaintiffs show that they are “aggrieved persons” under the definition of FISA? The answer to both questions is no. Rather, many of the lawsuits utilize the following logic: I have long distance service, so I am going to sue because I think you listened to my calls. Even though they have no proof; even though the government has more important things to do than listen to their random phone calls, they push on in their desire to justify their view of self importance and irrational belief in government conspiracy. I don’t want to bruise anyone’s ego, but if Al Qaeda is not on your speed dial the government is probably not interested in you.

And in the litigation that follows, either intelligence and national security secrets are revealed, or the companies cannot defend themselves.

A very good summary of the case for immunity and passage of H.R. 6304. Thanks, Senator.

Voting on the first of three amendments, the Feingold-Dodd amendment, to H.R. 6304, has started. Sixty votes are needed for passage of the amendment, which would strip out the immunity for telecom companies.

The votes will stack up in order.

UPDATE (12:17 p.m.): The Feingold-Dodd amendments fails, 32-66. We’ll post the roll call when it becomes available.  Roll call vote here.

Next up, the Specter amendment.

UPDATE (12:45 p.m.): Specter amendment falls 37-61. (Roll call vote here.) Now to the Bingaman amendment, with the final vote on the entire bill to occur after 2 p.m.

UPDATE (12:53): Bingaman amendment fails, 42-56. Senate is in recess until 2 p.m. (Roll call vote here.)

The Democratic presidential candidate, Sen. Barack Obama (D-IL), has been getting a lot of anger-infused grief from the left-wing activists for saying he’ll vote for H.R. 6304, the FISA Amendments Act, after saying in the primay season he would filibuster against it. Obama now says he’ll vote against the immunity provisions but for final passage.

U.S. News blog: “The largest group on Obama’s own website now goes by the moniker: “Senator Obama–Please Vote NO on Telecom Immunity—Get FISA Right.” The group comprises 18,000-plus Obama-ites. Its membership is mushrooming. Most who join do so in frustration with their candidate for switching positions on the Foreign Intelligence Surveillance Act bill, or FISA.”

• The Nation:  What Obama Should Be Saying About FISA
• Bob Ostertag, The Huffington Post: A Powerful, Easy Way to Tell Obama to Get it Right

And here’s a fun fact: Daniel Ellsberg is opposed to the FISA bill! To the angry left at the Daily Kos, that opposition constitutes a powerful argument.  

Sen. John McCain (R-AZ), the Republican presidential candidate, released a statement last month endorsing the FISA bill.