Left Flank

I am surprised how legalistically Phillip Carter tries to justify the immunity pass granted by the new and worsened Foreign Intelligence Surveillance Act (FISA).

But it should also be noted that telecommunications providers, like other government contractors, have long had similar statutory and common law immunities available to them. The most prominent is known as the «government contractor defense,» but there are others. The new FISA bill codifies this immunity and provides a simple procedural mechanism for federal courts to decide the issue. This marks a change from the earlier forms of immunity, which often involved protracted litigation. But the outcome remains the same.

As well it should. Absent negligent or intentionally wrong behavior by government contractors (in this case, telecommunications companies), we should not haul these companies into court over these programs. Decisions about surveillance are made by the government -- not the telecommunications companies. And to a large extent, because they operate in such a regulated field, these companies have very little choice about whether and how to cooperate with government surveillance requests.

I strongly support increased transparency and accountability for the government decisions, and it makes sense for an Article III judge to sign off on every secret surveillance action, even if that has to happen behind closed doors. But the responsibility buck has to stop somewhere, and that should be with the government decision makers who initiate surveillance, not the telecom companies.

Libertarians, rescue me!

It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch's surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren't conducted pursuant to the law.

To treat a «written directive from the government» as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can «authorize» surveillance without judicial oversight, the standard of review for analyzing the resulting «written directives» is entirely beside the point. I don't care if the Bush administration wrote letters to telecom companies «certifying» that participation in the warrantless spying programs was legal. That's not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest's former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.

It's a safe bet that no matter what «standard of review» is chosen, the courts will find that the companies did, indeed, act pursuant to a «certification» from the executive branch. Therefore, directing the courts to dismiss the lawsuits if the companies can produce such a «certification» is functionally no different from no-questions-asked immunity. It will mean no real consequences for breaking the law, and no real incentive for companies to be more careful about following the law in the future.

Orin Kerr: «...That sounds pretty sensible...»

Marty Lederman: «...the congressional Democrats have almost entirely capitulated to the White House on FISA reform...»

And, Senator Obama is MIA.

The Dems have sold out civil liberties for a little more executive power.

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