Is Retroactive Telecom Immunity Unconstitutional?

When Congress enacted and the President signed into law the FISA Amendments Act of 2008, some of the nation's largest telecommunications companies were given an extraordinary gift: full-scale immunity from the pending lawsuits brought by their customers, who had alleged that their privacy and other rights were violated by the telecoms' participation in the Bush administration's illegal spying program. There are, however, several reasons for believing that this telecom immunity provision is unconstitutional, violative of several different constitutional guarantees.

The first and, in my view, strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the "judicial power" which the Constitution assigns to the judicial branch. Article III, Section 1, provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," while Section 2 specifies that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States."

The lawsuits brought against the telecoms by their customers were brought pursuant to the Constitution and the laws of the United States, as those suits allege that the telecoms violated both the constitutional rights of their customers and federal law. Thus, adjudication and resolution of those lawsuits are the definitive "judicial powers" which the Constitution assigns to courts, not Congress or the President.

When immunizing the telecoms, Congress was not enacting a broad, generalized policy that falls into the scope of the "legislative power" constitutionally assigned to Congress by Article I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States"). Rather, what Congress was doing was deliberately intervening into pending lawsuits in order to resolve factual and legal issues in favor of one of the parties -- the telecom-defendants.

Indeed, the chief Congressional advocate of telecom immunity, Senate Intelligence Committee Chairman Jay Rockefeller, repeatedly stated that he favored telecom immunity because, in his views, the telecoms had acted "in good faith" when cooperating with the Bush administration's requests to enable illegal spying. And the formal Report of Rockefeller's Committee repeatedly emphasized, when justifying its support for immunity, its belief that telecoms acted in "good faith" -- a finding they reached by examining precisely the evidence and other documents that the court (or a jury) would have examined in order to resolve the telecom cases:

But whether telecoms acted "in good faith" was precisely one of the key factual questions that would have been adjudicated in the telecom lawsuits. The 1978 FISA law already provided that telecoms would be immunized from liability if they acted in the "good faith" belief that what they were doing was legal (see 18 U.S.C. 2520(d)). Thus, the very issue which Sen. Rockefeller and the Congress generally purported to resolve when enacting telecom immunity -- namely, whether the telecoms acted "in good faith" by cooperating with the Bush administration's spying program -- was to be resolved by the court as part of the telecom lawsuits. If anything qualifies as a "judicial power," it is the resolution of those sorts of factual disputes that exist between adverse parties in a lawsuit by examining the relevant evidence. By purporting to resolve that question in favor of the telecom defendants, and by preventing the court from doing so, the Congress usurped a definitive "judicial power" that is reserved by the Constitution for the courts. Congress has simply denied the courts their central, constitutionally assigned role.

A related ground for challenging the constitutionality of retroactive telecom immunity is a straightforward "Due Process" challenge under the Fifth Amendment, which provides that no citizen shall "be deprived of life, liberty, or property, without due process of law." Telecom customers who had their private communications turned over to the Government in violation of the law have clearly been deprived of property -- the right to sue telecoms -- without a smidgen of legal process. Instead, Congress has simply intervened in the lawsuit and ruled that the defendants are right and the plaintiffs are wrong.

The Electronic Frontier Foundation's Cindy Cohn, counsel to plaintiffs in the telecom cases, said: "our clients have the constitutional right to have their cases decided in a court, not by Congress." Congressional intervention in pending lawsuits for the purpose of deciding the dispute in favor of one of the parties seems clearly to be the sort of denial of property without due process of law that the Fifth Amendment was designed to prohibit.

Independently, it is worth noting here that several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature -- that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations. For this reason, Congress lacks the authority to enact statutes to deny remedies for constitutional violations. At the very least, the telecom immunity provisions should be held inapplicable to foreclose the plaintiffs' constitutional claims.

There are, as well, substantial due process problems with the extraordinary secrecy provisions in the FISA Amendments Act. Section 802(c) of the telecom amnesty section actually provides that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. It is impossible to understand how such secret Star Chamber proceedings can be reconciled with basic precepts of due process. EFF's Cohn said: "Our clients have the right to know why their cases are being dismissed and what the rationale is for the dismissal."

A further potential constitutional infirmity with telecom immunity is that it constitutes a "taking" without "just compensation" in violation of the Fifth Amendment. When they commenced their lawsuits against their telecom carries, the plaintiffs possessed something of clear value: namely, the right to sue under FISA and other laws for privacy violations and illegal spying. By retroactively removing those rights, the FISA Amendments Act have, in essence, deprived those plaintiffs of something of tangible value, a government "taking" which the Fifth Amendment allows only in exchange for "just compensation."

The legal rationale and precedental support for this argument was comprehensively set forth in a Findlaw article by Professor Anthony Sebok at the Benjamin N. Cardozo School of Law. Professor Sebok points out that in other instances where the Congress sought to deprive citizens of existing legal rights -- such as when Congress sought to deprive 9/11 victims of the right to sue airlines and World Trade Center owners -- Congress provided an alternative form of relief to constitute "just compensation" (in the case of the 9/11 attacks, it created the 9/11 Victims Compensation Fund in lieu of being able to sue in court). As Professor Sebok reasoned:

In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims' families, or access to a special court, such as in the case of childhood vaccines. . . .

to read the newspaper reports of the debate in the Senate over the reauthorization of the Foreign Intelligence Surveillance Act (FISA), it is as if this familiar, long history of immunity-for-compensation has been forgotten. The Republicans want to add to FISA a provision that would simply wipe away the lawsuits that have already been filed without any compensation at all. . . .

generally, the idea that a cause of action, once it vests, cannot be retroactively eliminated lies deep in the roots of our common law and constitutional tradition. That idea was one reason why the Senate did not just immunize the airlines and other defendants after 9/11. The reason for creating the Fund was not just that they wanted to help the families of the heroes who died on that day, though surely they did. It was also that they would have kicked up a firestorm of litigation had they tried to cut off the right to sue without offering any compensation in exchange.

It has been widely assumed since enactment of the FISA Amendments Act of 2008 that dismissal of the telecom lawsuits is a fait accompli. But the ACLU and EFF intend to contend that the telecom immunity provisions of the Act are unconstitutional, and there are numerous grounds that enable a persuasive case to be made. This is a battle, both legally and politically, that is far from over.

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Glenn, assuming your arguments would prevail in Court, can't Bush simply pardon the telecoms?
Related question: I recall the Pres. power to pardon is virtually limitless, BUT, can the President pardon Constitutional violations just as easily?


Sorry, I don't quite understand, what are we after here: “just compensation” or finding if Telecoms acting in "good faith" or both I guess? I mean, is this part of the appeal?

I just think that based on money for campaigns and what seems like to me, a compliancy in a crime by US congress, a act it seems that certain members of US congress may have been a party too, with seems like criminal acts of this administration. If this be the reason why congress acted to dismantle the fourth amendment, it seems like the statement should have been a more powerful statement in that direction?

I just don't think the “just compensation” anyway near solves the issue, or makes just excuse for what congress did with that FISA Bill, with the shroud of secrecy, which so utterly inhibits the rights of freedom against encroaching government despotism, since, it seems that the Bush Administration doesn't require judicial oversight anymore as of the last vote from congress.

I don't know, just seems like there should be something a lot more stronger than that writ above.

Paul Dirks

You refer several times to the plaintiff's right to sue as being the property and value they are being undulty deprived of. Doesn't their personal data also qualify? In other contexts one's personal data is treated as property which can only be relinquished voluntarily. It occurs to me that the right to use the phone network without interference (a service that is bought and paid for) is also being denied without due process or proper renumeration.

Ben Gale

Kudos for a well reasoned argument!



The President's power to pardon applies only to those subjected to federal criminal liability. The FISA amendment provides imunity from civil (as opposed to criminal liability( for violations of FISA. So the pardon power does not apply in this case.


bamage, you ask whether the President can also pardon the telecoms. I'd defer to Glenn on whether the Prez can issue a pardon in a civil lawsuit. But, the bigger issue was that the lawsuit itself had to be stopped, because the administration doesn't want the public to learn the extent of the lawbreaking that took place. They don't want to have to justify it politically, even though they can pull strings and get out of liability one way or the other.

They've also set up a ridiculous argument when they claim that allowing the lawsuit to proceed will deter telecoms from cooperating in good faith in the future. Transactional lawyers know how to work around that little problem; it's a routine indemnity provision. If I were a telecom dealing with the government and I wanted to make sure I wasn't sued over my actions, I'd just ask for a good solid indemnity provision. If the government doesn't want to indemnify me, that itself would be a good indication that the government is aware this action is illegal. Don't forget, Qwest was the sole telecom that refused to go along with the program -- and all they were asking for was written confirmation that the spying was lawful.


"Independently, it is worth nothing here that several of the claims..."

From the context, I'm guessing you meant "worth noting"? :)

Frankly, my dea...

Glenn, while your arguments seem sound, I still think there is a constitutional principle involved here in the Constitution's prohibition of "laws impairing the obligations of contracts". Regardless of how plaintiffs' have stated their claims, plaintiffs had a contract with defendants not to divulge their private information or the contents of their communications except as required by law. If defendants operated outside the law then they have violated the contract and plaintiffs are entitled to redress.

That makes Title II of the FAA a "law impairing the obligations of contracts", and this is what Madison had to say about it in Federalist 44:

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters."

Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798), the Supreme Court case that defined the constitutional prohibition against ex post facto laws, was very specific that laws of this type were prohibited by the Constitution:

"A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or in other words for an act which when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments."

Since corporations are private persons before the law, Title II of the FAA is clearly a law that "violates the right of an antecedent lawful private contract" and hence prohibited by the Constitution.


Glenn, one more question -- were any state laws violated?


I'm trying to get a handle on whether or not Bush can render the Constitutional arguments moot (via pardon) on his way out the door.


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