ACLU Analysis of Telecom Immunity Provision in Senator Bond's Proposal of May 21, 2008

Despite claims that Senator Bond’s proposal will allow court review of the pending lawsuits against telecoms that illegally released consumer communications and records, the draft very clearly prevents the courts from determining whether those activities actually complied with the law. Instead, it directs the secret FISA court to dismiss all cases on a showing merely that the telecoms received a piece of paper from the government – regardless of what it said. Here’s what the Bond proposal really does:

Lets the Attorney General (AG) Kill Any Meaningful Court Review of Warrantless Surveillance. The Bond proposal grants the Attorney General the sole discretion to determine whether current cases against telecommunications carriers will proceed. The AG need only certify in writing to the secret FISA court either that a 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 whether that directive was legally sufficient – only to determine if, by a preponderance of the evidence, the AG did in fact issue the directive.

Lets the AG Gag FISA Judges. In addition to preventing court review, the Bond proposal allows the AG to gag the courts. After forcing the FISA court to dismiss the pending cases, it then prevents the court from ever declaring whether the dismissal was based on the telecoms alleged non-participation or a legally insufficient note from the administration.

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. The Bond proposal lets the AG intervene in these state actions and prevent 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, the Bond proposal even kills the cases that only seek a ruling from the court that the behavior was illegal and an order that the illegal behavior should not happen again in the future. Instead of protecting just the telecoms from liability, this power allows the government to shield its own wrongdoing and prohibit any independent review of whether its surveillance activities were indeed constitutional or criminal.

Creates a Disincentive to Follow the Law in the Future. Letting the telecoms off the hook without any consequence – not even a ruling that their behavior was illegal and should not continue – 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.