11/12/2006 11:51 pm ET Updated May 25, 2011

Will the Lame-Duck Congress Grant Immunity for the NSA Program?

As Democrats begin to lay out their agenda in anticipation of controlling both houses of the new 110th Congress, it seems clear that investigations of the administration's misconduct over the last six years will take up much of their attention. Having been elected with a mandate for extricating the country from the mess in Iraq, scrutiny will certainly be directed at the prewar intelligence, the planning for the aftermath of the invasion, no-bid contracts, and the like. Not far behind will be inquiry into the nature and scope of the NSA's surveillance program.

Therefore it should come as no surprise that one item high on the agenda of the Republican-controlled lame-duck Congress will be bills to confer immunity for this array of misconduct--legislative pardons, if you will. We've already seen one example of this in the provisions of the Military Commissions Act, passed just before the election, which purport to immunize from civil and criminal liability government and military officials who have been complicit in torture and other unlawful detention and interrogation practices. Now it appears immunity provisions related to the NSA Program are going to be on the table.

A broad immunity provision protecting administration officials would never pass both houses during the lame-duck session. But we have some reason to fear that the telephone companies that secretly helped the NSA implement its illegal surveillance program are trying to get an immunity provision passed to shield themselves from damages. At least 60 class-action lawsuits are currently pending over the help the telcos gave the NSA in intercepting communications or in compiling their database of calling records, and, as we noted in an earlier post, the scope of damages in such cases is potentially in the hundreds of millions of dollars for each company that participated.

Rep. Heather Wilson (R-NM) put forward a proposal in July to whitewash the NSA Program. Eventually added to her initial proposal was the following provision (Section 10 of her proposed Electronic Surveillance Modernization Act) that would retroactively immunize telecommunications companies from having to face their day in court for any assistance they gave the NSA since 9/11:

"no penalty, sanction, or other form of remedy or relief shall be imposed by any court ... against any person for ... provi[ding] to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or assistance during the period of time beginning on September 11, 2001, and ending ... 60 days after the date of the enactment of this Act, in connection with any alleged communications intelligence program that the Attorney General or a designee of the Attorney General certifies ... is, was, or would be intended to protect the United States from a terrorist attack."

There are many great additions to the annals of Orwellian doublespeak in this paragraph ( "any alleged communications intelligence program"; "would be intended..."). But Wilson's bill actually managed to pass the House before the election with this provision in it.

Now our worry is that the phone companies and their friends in Congress will try to sneak this language into another unrelated bill where it may pass both houses without being noticed by the public -- most likely a large appropriations bill. (The provision quoted above was added to the final version of Wilson's bill that passed the house -- it wasn't in her original bill from July -- and there was a similar back-door effort to attach comparable language to the Port Security Bill before the election.) At least there was some debate about the Military Commissions Act. If the telecom immunity provision is passed it will be in the dark of night - appended to some giant spending bill, with little notice and less debate.

Passage of this retroactive get-out-of-jail-free card for the telephone companies would be a disaster for our attempts to hold administration officials accountable for unlawful spying. One of the problems we face in trying to hold them accountable is the fact that we know so little about the program. The lawsuits against the phone companies could provide the public with much valuable information: How vast was the program? Was it targeted at terrorists or was it a data-mining program aimed at all Americans? How much information about customers was provided to the government? Did the government tell the companies they had gotten approval from a court, or did the companies know they were breaking the law with the NSA when they helped it intercept their own subscribers' calls and emails? Were the companies promised other favors (e.g. a reduction in antitrust oversight or other pesky government regulation) in return for their help? Obviously, Congress needs to know answers to these questions before it can sensibly even think of giving the companies a free pass.

More importantly, the reason existing law allows for massive damages claims against telecom companies is that forcing the telecom companies to obey the wiretapping laws is the best way to force government officials to obey those same laws. Without help from the phone companies, the NSA Program would have been impossible to implement (as James Risen details in his book on the subject). If the companies can expect that Congress will retroactively immunize them every time the President asks them to break the law, then the companies will have no incentive to stand up to future Presidents seeking to abuse the power of warrantless wiretapping for political ends or other illegal purposes. Under existing laws, telecom company liability is another check and balance against an overreaching executive.

Our allies at the Electronic Frontier Foundation in San Francisco are leading the fight against these telecom immunity provisions. You can check out their action page here. A list of key Congressional leaders and their phone numbers is below.

It's frankly amazing that we are even talking about telephone company immunity after all the hearings the 109th Congress held about corporate spying at Hewlett-Packard. Indeed, an "anti-pretexting" bill (pretexting being a euphemism for lying and pretending to be someone else to get access to their private information) proposed in response to the HP scandal, S.2389, also contains provisions that might preempt certain state privacy claims against telecom companies. (It's section 8 of that bill.) Between the companies' deep pockets for campaign donations and the naïve notion that they were "just doing what the government asked them to do" (break the law), there may be support in unexpected places for these immunity provisions, especially if members of Congress think their public isn't watching. Call them up and let them know that you notice.

--November 12, 2006

Senate Leadership
Harry Reid (D-NV) - Minority Leader - (202) 224-3542
Richard Durbin (D-IL) - Minority Whip - (202) 224-2152
John McCain (R-AZ) - (202) 224-2235
Susan Collins (R-ME) - (202) 224-2523

House Leadership
Nancy Pelosi (D-CA) - Minority Leader - (202) 225-4965
Steny Hoyer (D-MD) - Minority Whip - (202) 225-4131
Rahm Emanuel (D-IL) - (202) 225-4061

Senate Appropriations
Robert Byrd (D-WV) - (202) 224-3954
Daniel Inouye (D-HI) - (202) 224-3934
Pat Leahy (D-VT) - (202) 224-4242
Byron Dorgan (D-ND) - (202) 224-2551

House Appropriations Committee
Jerry Lewis (R-CA) - Chair - (202) 225-5861
Frank Wolf (R-VA) - (202) 225-5136
Jim Kolbe (R-AZ) - (202) 225-2542
David Obey (D-WI) - Ranking Member - (202) 225-3365
John Murtha (D-PA) - (202) 225-2065
Norman Dicks (D-WA) - (202) 225-5916
Martin Sabo (D-MN) - (202) 225-4755
Alan Mollohan (D-WV) - (202) 225-4172
Marcy Kaptur (D-OH) - (202) 225-4146
Peter Visclosky (D-IN) - (202) 225-2461
Nita Lowey (D-NY) - (202) 225-6506

Senate Commerce
Olympia Snowe (R-ME) - (202) 224-5344
Jay Rockefeller (D-WV) - (202) 224-6472
Barbara Boxer (D-CA) - (202) 224-3553
Bill Nelson (D-FL) - (202) 224-5274
Maria Cantwell (D-WA) - (202) 224-3441
Frank Lautenberg (D-NJ) - (202) 224-3224
Ben Nelson (D-NE) - (202) 224-6551
Mark Pryor (D-AR) - (202) 224-2353

House Intelligence Committee
Jane Harman (D-CA) - Vice Chair - (202) 225-8220

House Energy & Commerce Committee
John Dingell (D-MI) - Ranking Member - (202) 225-4071
Butch Otter (R-ID) - (202) 225-6611

UPDATE: A few notes on the comments: The ex post facto clause is interpreted by the courts to apply only to criminal punishments, so, for example, sex offender registration requirements passed while someone subject to them is still in prison are not considered to violate the ex post facto clause; civil laws not imposing penalties are the same -- Congress here would be deleting legal claims it had created in the first place by statute, and while there are arguments for why the plaintiffs' claims might survive such a change in law, such claims are analyzed under different legal standards. More or less the same deal for Bills of Attainder -- they must carry some stigma akin to criminal judgment. So a censure resolution against GW Bush that expressly claims that he committed war crimes might be an unconstitutional Bill of Attainder.

"Baka" asks whether we can amend the constitution to get rid of secret committees. One interesting thing some states have done in the past is to go to a unicameral (one-house) legislature, thus eliminating the need to synchronize House and Senate bills. Nebraska has been doing this since 1937, when reformers instituted the change. My sources tell me a similar referendum proposal was passed in Puerto Rico by a massive margin, but is still a while away from becoming law. (Federal Unicameralism might be problematic to pass via ordinary Constitutional amendment given the Constitutional guarantee of equal state representation in the Senate. Those Constitutional provisions might require unanimous consent of the states to modify.) Thanks, as always, for reading.