ACLU Fact Sheet: Amendments to Senate FISA Bill Regarding Immunity for Telecommunications Companies that Facilitated Warrantless Wiretapping

February 4, 2008
The Senate is poised to consider three amendments regarding immunity for telecommunications companies that facilitated warrantless wiretapping.  The amendments will modify the bill produced by the Senate Select Committee on Intelligence, as modified by the managers’ amendment.  That bill currently would dismiss lawsuits pending against the telecommunications companies that undertook wiretapping in violation of the clear terms of the Foreign Intelligence Surveillance Act (“FISA”). 

In contrast, the House-passed RESTORE Act does not grant immunity for these companies, thus allowing the pending lawsuits consolidated in the United States District Court for the Northern District of California to continue until their final disposition.  The ACLU believes that all plaintiffs suing regarding violations of FISA should be given their day in court and that Congress should not interfere with those plaintiffs’ statutory and constitutional rights to sue to protect Americans’ privacy in their phone calls and e-mails. The ACLU urges Senators to continue to allow the court to hear and decide these matters in the manner established by FISA, which ensures victims of warrantless wiretapping the right to sue.  Thus, the House RESTORE Act is vastly superior to the pending Senate bill in that the House bill does not dismiss those lawsuits.

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The three amendments and the ACLU’s vote recommendations are discussed below:

Dodd -Feingold-Leahy – Amendment #3907
Vote Recommendation: Yes
      

The Dodd -Feingold-Leahy amendment would strike Title II of the pending Senate bill, thus eliminating provisions that would force dismissal of the pending lawsuits.  If adopted, this provision would leave both the House and Senate bills silent regarding a grant of immunity to those companies that broke the law by wiretapping outside of FISA.

ACLU strongly endorses the Dodd -Feingold-Leahy amendment, which would preserve the statutory and constitutional rights of plaintiffs to protect law-abiding the privacy of their phone calls and e-mails.  To be adopted, this amendment must attract a majority of Senators’ votes.

Specter-Whitehouse – Amendment # 3927
Vote Recommendation:  If Dodd -Feingold-Leahy Amendment #3907 is tabled or fails, Yes, otherwise No

The Specter-Whitehouse amendment would substitute the federal government as the defendant in each of the pending suits.  This amendment, therefore, would eliminate on-going litigation responsibility – and potential future liability – for the telecommunications companies who currently are defendants.  If the amendment is adopted, in the eyes of the law, the federal government would “stand in the shoes” of the telecommunications companies.  The amendment would also waive the government’s common law defense of sovereign immunity, which, if not waived, would prevent the federal government from being sued.

The ACLU opposes any amendment that would restrict the legal rights of plaintiffs to protect their privacy in court.  Therefore, the Dodd -Feingold-Leahy amendment is strongly endorsed.  It is only when viewed relative to the potential passage of the Senate bill with its current grant of immunity that the Specter-Whitehouse amendment is viewed favorably in that it would preserve the lawsuits in an altered form.  The flaw in the Specter-Whitehouse amendment, however, is that it would likely eliminate the liability of companies that violated the clear terms of FISA, thus violating the statutorily- and constitutionally-protected privacy of Americans.  By substituting the government, these companies may never be forced to admit their wrongdoing.  The amendment, although seemingly preserving plaintiffs’ day in court would reward the telecommunications companies for breaking the law.

Senators should only vote in favor of the Specter-Whitehouse amendment if the Dodd -Feingold-Leahy amendment has been tabled or fails to pass. Otherwise, Senators will be countenancing warrantless wiretapping by essentially granting a congressional pardon to those companies that clearly broke the law for more than 5 years. To be adopted, this amendment must attract a majority of Senators’ votes.

Feinstein – Amendment # 3919
Vote Recommendation:   If Dodd -Feingold-Leahy Amendment #3907 is tabled or fails, Yes, otherwise No

The Feinstein amendment would dismiss the lawsuits at the request of the Attorney General of the United States.  The dismissal would occur if the AG certifies that either the company that was sued did not wiretap or that the wiretapping was (i) authorized by the President; (ii) designed to detect or prevent a terrorist attack; and (iii) requested in writing by a head of a department of the intelligence community or his or her deputy.   The dismissal would be stayed pending the determination by the Foreign Intelligence Surveillance Court (“FISC”) of whether the telecommunications companies acted under an “objectively reasonable” “good faith” belief that the government’s written requests were lawful and authorized by the President.  In short, this amendment would change the legal question from whether the companies broke the law to whether the companies that broke the law did so at the request of the Bush Administration and if their lawyers believed the documents that requested the wiretapping complied with FISA.

The ACLU opposes any amendment that would restrict the legal rights of plaintiffs to protect their privacy in court.  Therefore, we strongly support the Dodd -Feingold-Leahy amendment and only think favorably of the Feinstein amendment if the Dodd -Feingold-Leahy amendment is tabled or fails to pass.  The ACLU believes that federal courts have capably handled lawsuits regarding matters that might touch on national security for more than 50 years and that the cases should not be taken out of the federal court system and given to the FISC.   Since its creation in 1978, the FISC has operated as a secret court.  No individual outside of the government has ever argued before the FISC, leaving the government to argue in secret and unchallenged.  Although the Feinstein amendment permits plaintiffs to be heard by the FISC, the amendment does not clearly state whether the plaintiffs have the right to argue directly before the FISC judges or simply to provide briefs.  Similarly, the amendment does not make clear whether the plaintiffs will be able to review the government’s legal briefs or arguments in order to rebut them.   

To be adopted, the Feinstein amendment must attract at least 60 Senators’ votes.

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