Finding an Alternative to Telecom Immunity

« Europe Puts Up a Roadblock for Google/DoubleClick | Main | Apple Fixes Dopey Firewall Language »

November 14, 2007

Finding an Alternative to Telecom Immunity

Slate: The smart way around telecom immunity. :

"Bush lawyers have used the state secrets privilege to convince a federal appeals court to dismiss an ACLU lawsuit against the National Security Agency asking a court to declare the spying program illegal. And in the cases that have been brought against the telecoms, the administration has invoked the same privilege to argue that courts can't let the cases go forward because the telecoms would be in the unfair position of not being able to defend themselves—because, of course, the administration won't let the companies turn over the relevant documents. Retroactive immunity isn't about letting the telecoms off the hook. It's about hiding the administration's own legal claims from any judicial or public scrutiny. The administration wants to keep these cases out of court so it can cover up for itself.

"Congress can protect the telecoms without falling for this trick. In reforming FISA, Congress should enact a comprehensive law governing the state secrets privilege, one that protects our national security and also allows litigants to make their case in court. Congress figured out this sort of balancing act for criminal cases decades ago when it passed the Classified Information Procedures Act; now it's time to do the same for civil suits. We agree with the administration that state secrets should be protected at all costs. But this administration can no longer be trusted to use the privilege to protect only genuine secrets. It's instead covering up its own dubious legal reasoning—not just in the domestic surveillance cases, but also to avoid scrutiny of the torture and rendition programs at issue in the cases of Khalid El-Masri and Maher Arar. Someone other than the executive must be able to review whether the executive is abusing the privilege."

Oh ... you wanted a punch-line, too?

"The ongoing FISA debate gives Congress an opportunity to step in where the court has failed to. If Congress is serious about allowing the telecoms to defend themselves, while holding the administration accountable, fixing the state secrets privilege is the place to start. Then, it'll be time for the administration to state its secrets."

That's a mighty big "if."

Half of Congress is all for "allowing the telecoms to defend themselves," and not at all for "holding the administration accountable." And the other half is a mixed bag we can expect will not push for any sort of confrontation on the issue.

Prediction: Arguments like this become cover for immunity, but the second half ... the part about reforming oversight to the point these kinds of abuses don't happen again ... dies quietly.

Tags: congress, privacy, telecoms, wiretaps