March 5, 2008
TELECOM IMMUNITY IN
S. 2248
Last month the Senate passed a bill
that would allow the Attorney General to kill single-handedly all pending cases
against telecommunication companies who illegally spied on their costumers
during the last 7 years.
Conversely, the House smartly rejected any such “get-of-jail-free card”
without a full airing of the facts.
With “compromise” legislation in the works, it is critical that Members
vote NO on any legislation that substantially provides immunity – regardless of
how many steps it takes to get there.
Ultimately, if the legislation doesn’t allow a court to determine
independently whether FISA was violated, Members are urged to vote
NO.
Members should reject legislation that in any way reflects
aspects of the Senate bill that:
- Lets the Attorney
General (AG) Kill Any Court Review of Warrantless Surveillance – Whether Under
Currently Known or Unknown Programs. S. 2248 grants the Attorney General the
sole discretion about whether current cases against telecommunications carriers
will proceed. The AG need only
certify in writing to the court that either the telecom didn’t participate in
the program or that it did so in reliance on written assurances from the
President that the program was legal.
The court does not have the authority to determine if either of these are
even true – only to determine if the AG is abusing his or her discretion.
- Lets the AG Gag
Judges. In addition to
preventing court review, S. 2248 allows the AG to gag the courts for all intents
and purposes. The bill prevents the
court from ever declaring whether the dismissal (also mandated by the bill) was
meritorious – i.e. based on the telecoms’ non-participation - or a payback –
i.e. based on a written assurance from the President authorizing their spying on
customers.
- Prevents States From
Enforcing Their Own Privacy Laws.
A number of states have begun investigating whether their own states’
privacy laws were violated by the warrantless wiretapping and release of
consumer records after 9/11. S.
2248 even lets the AG intervene in these state actions and prevents the states
from protecting their own citizens and enforcing their own laws.
- Prevents Citizens From
Enforcing Their Rights and Hides Government Wrongdoing. In addition to
killing the cases seeking monetary damages, S. 2248 even kills the cases that
only seek a ruling from the court that the behavior was illegal and that it
should not happen again. Instead of
protecting the telecoms from liability, this power allows the government to
shield its own wrongdoing and prevent any independent review of whether its
wiretapping activities were indeed constitutional or
criminal.
- Creates a Disincentive
to Follow the Law in the Future. By letting the telecoms off the hook
without any consequence – even a ruling that their behavior was illegal and
should not continue – it sends the wrong message to those who have access to our
private conversations and records.
When the government asks them to break the law in the future, they will
have precedent that Congress will cover their tracks.
