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Shayana Kadidal Headshot

Comey and the Phone Companies' Role in the NSA Program

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On Friday, professional administration apologist Douglas Kmiec published an op-ed in the Washington Post in which he criticizes former Deputy AG James Comey's testimony as "staggeringly histrionic," claims the media's analogies between the threatened mass resignations (of Comey, Ashcroft and FBI Director Mueller) to Watergate's Friday Night Massacre are absurd, and then (correctly) notes that the president, not the Attorney General or anyone else in DOJ, has the last word on exactly which interpretation of federal laws the rest of the executive branch will follow.

Over at the Balkinization blog, Marty Lederman of Georgetown Law School breaks down Professor Kmiec's op-ed, and zeros in on one of the most interesting issues that Kmiec (perhaps inadvertently) highlights: "Why did the president seek the AG's signature, anyway, if it wasn't required by statute and the president could have the final word?"

For my money, the most intriguing answer Professor Lederman provides is that "the [Attorney General's] signature might have been necessary to induce the requisite private actors -- telecom companies in particular -- to continue to go along with the program." (Orin Kerr, a more conservative expert on surveillance issues, concurs.)

Here's how that would work: the Wiretap Act contains a section, 18 USC 2511(2)(a)(ii), that allows telecom providers and other private parties (e.g. your landlord) to help the government carry out electronic surveillance if those private parties have been "provided with ... a court order" or "a certification in writing by ... the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required."

So, the government can go to AT&T with a court order -- a warrant -- allowing the government to put a wiretap in place, and AT&T is allowed to help them without such help subjecting AT&T to criminal or civil liability under the various wiretapping laws. That seems pretty intuitive to most people. But you might wonder why the statute allows the Attorney General to simply sign a written certification "that no warrant or court order is required by law" -- doesn't that undercut the requirement to go to court and get a warrant? Well, even the wiretapping statutes allow some limited surveillance without a court order. For instance, the AG can implement emergency wiretaps (18 USC 2518(7); 50 USC 1805(f)), lasting no more than 2 or 3 days -- basically a grace period after which the AG must bring the court a full warrant application. Another example is the FISA provision allowing foreign diplomatic communications to be intercepted without court order (50 USC 1802(a)). Those permissive legal provisions -- the emergency provisions in particular -- wouldn't serve the purposes they were intended for if private actors couldn't help implement them just based on the AG's signature on a certification.

With this legal framework in mind, it becomes pretty easy to see why Gonzales and Card might so doggedly pursue John Ashcroft's signature even though he was under sedation in a hospital bed. If the government was taking these "reauthorization" documents -- recall the NSA Program was reauthorized every 45 days by the president and Attorney General -- to the telephone companies to reassure them that they would never be held liable for helping operate NSA's vast illegal program of surveillance, and then one day (thanks to Jim Comey) the Attorney General's signature disappeared from that reauthorization,* well, it might not matter very much to a phone company that the president is, as matter of constitutional theory, empowered to provide authoritative interpretations of federal law to guide the rest of the executive branch. Because the laws making private phone companies liable for helping breaking into your phone conversations in the absence of a certification from the Attorney General were made by Congress, not the president. And unless Congress somehow lacked the constitutional power to stop the president from wiretapping wherever he pleases (recall these were the John Yoo-style arguments Comey and DOJ were probably tossing overboard in early 2004), it wouldn't help a private phone company very much that the president said they could break laws that that pesky legislative branch had made. Especially with the prospect of thousands of private litigants seeking up to $1000 a day in damages each.

So, perhaps the reason Gonzales was so alarmed was that (1) in March 2004, Comey and DOJ were no longer buying the craziest John Yoo-authored arguments that The President Can Spy on Whomever He Wants, and thus (2) Comey was refusing to sign the reauthorization, and (3) the telcos had, up to that date, been treating the reauthorizations as proper "certifications" under the Wiretap Act, and (4) the lack of an AG signature would expose the companies to liability if they continued on in facilitating the NSA Program, and so (5) they would pull the plug on it.

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This is not to say that the phone companies need any help in coming up with their own crazy ideas to defend the legality of the NSA Programs. One of them was on display two weeks ago, when Verizon filed its motion to dismiss the case against it for complicity with the NSA Program.

The case against Verizon centers on the widely-reported notion that a bunch of telcos turned over huge databases containing calling records -- who their customers called and when, and for how long, etc. -- in violation of the federal statute protecting the privacy of such records. (That statute, ECPA, allows for money damages against companies that disclose those private records without a court order or certification.)

Verizon came up with a defense I think none of us anticipated.** The First Amendment protects a right "to petition Government for a redress of grievances." Verizon asserted that they have a First Amendment right to "petition government" with your calling records (here's the whole brief):

There is a fundamental constitutional right to communicate information to the government to help it protect public peace and safety. When the country is engaged in an armed conflict with foreign enemies, that right applies to communicating information that may [!] be useful in defending the country from expected [!] attacks. ...[D]efendants' right to communicate such information to the government is fully protected by the Free Speech and Petition Clauses of the First Amendment, and is a privilege and immunity that arises directly under the federal Constitution. Any construction of ECPA that purported to prohibit such communications, and to subject defendants to monetary liability for engaging in the communications alleged, would violate these constitutional rights.

Let's just be clear what this means. Congress can pass all the privacy legislation it wants to keep your phone calling records, banking records, stored emails, etc. private. But if some private telecom company decides that terrorist attacks are "expected" and that turning over all this statutorily-protected information to the executive "may" be helpful to law enforcement, the telephone company's First Amendment rights to do that trump Congress' power to preserve your privacy. No matter what privacy laws Congress tries to pass, the First Amendment voids them all if the phone company decides it wants to ignore them.

Imagine this: an out-of-control, lawless executive starts a rampage of privacy violations by getting information on innocent citizens' phone calls, emails, and internet searches from private telecom companies. Congress overwhelmingly passes a bill to curtail the abuses by regulating those private parties, overriding the president's veto in the process. Isn't this a normal use of the political process? According to Verizon, no. Your elected officials don't get to decide. Your telecom company gets to decide.

John Yoo, Jay Bybee and David Addington, meet Verizon lawyers John Rogovin, Henry Weissmann, and Randal Milch! The crazy administration arguments have migrated to the private sector!

You know something that actually is protected by the First Amendment? Boycotts.

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The companies are fighting a two-front war, attempting to hoodwink the courts while they mount a hostile buyout of the other branch of government, Congress. The Ars Technica blog reprints the text of the latest phone company immunity bill here (saying, accurately, "[p]repare yourself for the longest single sentence you have ever read."):

Notwithstanding any other law, and in addition to the immunities, privileges, and defenses provided by any other source of law, no action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.

That's from section 408 of the proposed bill, and it's buried beneath the innocuous headline "Liability Defense." As the sponsors helpfully explain later in an analysis of the bill, "companies that cooperate with the Government in the war on terror deserve our appreciation and protection -- not litigation." It sounds very comprehensive, except when you realize that it applies only to help provided before the date of passage. God forbid the telcos be immunized from helping, say, Hillary Clinton spy on political opponents.

As demonstrated by most of the other bills on offer (see my previous posts here, here, here, here, here, and here; but contrast here), legislative attempts at FISA "reform" are generally ill-conceived and unnecessary. FISA says that FISA and the other wiretapping statutes are the exclusive means of conducting electronic surveillance. If the courts have the guts to hear our claims under FISA, we win. End of story.

--May 20, 2007

(* Whether a proper certification was ever given to the telcos is currently a huge issue in the cases against private telephone companies for their complicity in the NSA Program. And the government is once again seeking to keep the courts in the dark about it by claiming the State Secrets Privilege entitles it to neither confirm nor deny the existence of such certifications.)

(** Law firms often throw in the kitchen sink when they write long briefs, but usually it's a footnote or a paragraph putting forth the crazy argument. Verizon's lawyers go on like this -- for twenty frigging pages!! (In fact, on page 30 they say even if the First Amendment wasn't in the Constitution they'd still have this right. Just in case the academics were curious.) Of course, Verizon also says that whether or not there was a program and whether or not they were co-conspirators in it are all state secrets. So their table of contents is full of these great little headings: "Defendants' Alleged Communications Are 'Speech' Protected by the First Amendment" (quote-unquote 'speech,' not just regular speech!); "Defendants Cannot Be Held Liable for Their Alleged Petitioning Activity" ("alleged petitioning" indeed!).)