Intellectual Property Law

FISA and immunity

By Susan Crawford

Great work today on the OpenCongress.org blog, telling us that (1) Sen. Specter wants to have the government step in as defendants in the tens of cases pending against cooperative telcos involved in violating FISA and other laws; (2) Sen. Feinstein wants the secret FISA court to decide the question of immunity; (3) Sen. Leahy’s amendment removing immunity from the telcos has been rejected and Sen. Dodd has vowed to filibuster.

As of tonight, it appears the Senate has delayed further consideration of the issue until Monday. Sen. Reid is blaming the Republicans. And an interesting sidenote: the Senators now have access to the requests for data given to the telcos and the President’s authorization of the warrantless wiretapping.

Under the version of FISA in place at the time the wiretapping was authorized, 18 U.S.C. 2511(2)(a)(ii) said that

Notwithstanding any other law, providers of wire or electronic communication service. . .  are authorized to provide information, facilities, or technical assistance to persons authorized by law to . . . conduct electronic surveillance, . . . if such provider . . . 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. . .

The cases so far keep running up against the State Secrets Doctrine (except for Hepting), and so we never get to the application of this statutory exception.  But if we ever get there, and the AG provided this certification, then why wouldn’t the cases be dismissed?  Maybe because this would mean that the AG himself acted unlawfully - because all the statutory requirements weren’t met.  (How could they have been?  This was a blatantly unlawful program.)  Or maybe the certification doesn’t meet this standard.

I hope we see these certifications and authorizations someday soon.  Most of us don’t want immunity for the telcos.  I’d like to see the lawfulness of the surveillance program reviewed by an ordinary federal court, myself - that’s probably more important than money damages at this point.

Full post as published by Susan Crawford Blog on January 24, 2008 (boomark / email).