Senator Specter tells us who we can sue and guarantees us we’ll lose
Arlen Specter’s “Foreign Intelligence Surveillance Substitution Act of 2007″ (S. 2402) is a dangerous piece of proposed legislation because his bill aligns Congress, the White House, and the telecoms against the citizenry. Indeed, his bill would be more properly named the “Telecoms Shield Act of 2007″ or the “Substituting Our Judgment for the Courts Act of 2007″ because what it would do is dictate who we may or may not sue and what the courts must do if some conditions are met.
If I understand it correctly, what S.2402 says is that if the Attorney General certifies to a court that an electronic communication service provider assisted the government because it was given a written directive saying that: (1) the President had authorized the program and the requested assistance was determined to be lawful and (2) the assistance was designed to detect or prevent a terrorist attack, and (3) the assistance took place between Sept. 11, 2001 and January 17, 2007, then the Court must substitute the U.S. government as the defendant in the civil action and dismiss the case against the electronic service communication provider. Because the certification can be made in camera and ex parte, we would still find out nothing about what really went on. The only time that a telecom might remain as a defendant is if its “assistance” exceeded what it was asked to do in writing.
This “you can only hold the government accountable, even if you believe your telecom violated its privacy policy and contract with you as well as a host of federal laws” is offensive on so many levels. Although this is not a perfect analogy, consider the following:
Dr. Smith is a mandated reporter under the laws of his state. During a session with a patient, he is told something that he believes he must report to the state based on his understanding of the state mandated reporters law. The patient later sues him, claiming that he breached privacy and confidentiality.
I can think of no case where a patient was told, “You cannot sue Dr. Smith and must sue the state.” What would happen is that Dr. Smith would provide a defense, and would generally have some immunity under state law if he adhered to the law. But the case would be decided by a judge or jury, not by the state legislature telling the patient, “You can’t sue Dr. Smith and can only sue the state.”
And if Dr. Smith knew he did not have to report but chose to, then he would not have immunity. Even if he thought he was doing a “good thing,” he would still have liability. Why shouldn’t the telecoms?
The telecoms were neither nationalized nor ordered to assist the intelligence community. And they probably profited financially from assisting. Those factors were ignored by Specter in his remarks introducing the bill in Congress on December 3:
acknowledging the good citizenship of the telephone companies for whatever it is that they have done. We still don’t know all of what that is.
[...]
Now, recognizing the telephone companies are good citizens, I am prepared to see their involvement held to the minimum.
What about recognizing the fact that good citizens are also good citizens and we didn’t deserve to have our Fourth Amendment rights violated by the federal government in collaboration with the telecoms?
Senator Specter’s bill would waive our rights of redress or limit them and does not prevent the federal government from stonewalling behind a “state secrets” defense:
(e) RULE OF CONSTRUCTION. – Except as expressly provided in this section, nothing in this section may be construed to limit any immunity, privilege, or defense under any other provision of law, including any privilege, immunity, or defense that would otherwise have been available to the United States absent its substitution as party-defendant or had the United States been the named defendant.
Thus, assuming the bill or amendment were passed, nothing stops the Attorney General from certifying the telecoms and the court dismissing the cases against the telecoms, only to find that when the United States is the defendant, it uses the “state secrets” argument and blocks all attempts at discovery by ordering the telecoms to not respond to discovery requests under the “state secrets” argument.
Because Specter’s bill cannot stop the government from employing a “state secrets” defense, it’s an exercise in futility. But supposing, for the moment, that the United States is found guilty. Who lands up paying the fines? We, the taxpayers, would be essentially suing ourselves instead of the telecoms who have probably benefited financially from their cooperation with the federal government.
Because the Senate may take up the FISA amendment bill this week (and it is not certain at this point which version of S.2248 Reid will bring to the floor) and because Specter’s bill will be considered by the Judiciary Committee Dec. 6th at 10:00 AM, it is important to make your views known quickly. See if your senator is on the Judiciary Committee, and if so, contact him or her and say, “Let the lawsuits go forward without immunity for the telecoms. We’ll accept no substitute for our civil liberties.” If your senator is not on the Judiciary Committee, you can use these numbers to reach the Judiciary Committee:
Democratic Phone: (202) 224-7703
Democratic Fax: (202) 224-9516Republican Phone: (202) 224-5225
Republican Fax: (202) 224-9102
(Apparently if you’re not in one of the two major parties, they don’t have a phone number for you to call.)
You may also want to call Harry Reid and tell him to bring the Judiciary Committee’s version of S.2248 (the one without an immunity provision) to the floor instead of the Intelligence Committee version. You can reach Reid through his web site contact form or call 202-224-3542.
