Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say

Sen. John D. Rockefeller IV (D-W.Va.), right, said the legality of data requests is the administration's responsibility.
Sen. John D. Rockefeller IV (D-W.Va.), right, said the legality of data requests is the administration's responsibility. (By Susan Walsh -- Associated Press)

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By Dan Eggen
Washington Post Staff Writer
Monday, October 22, 2007

When previous Republican administrations were accused of illegality in the FBI and CIA spying abuses of the 1970s or the Iran-Contra affair of the 1980s, Democrats in Congress launched investigations or pushed for legislative reforms.

But last week, faced with admissions by several telecommunication companies that they assisted the Bush administration in warrantless spying on Americans, leaders of the Senate intelligence committee took a much different tack -- proposing legislation that would grant those companies retroactive immunity from prosecution or lawsuits.

The proposal marks the second time in recent years that Congress has moved toward providing legal immunity for past actions that may have been illegal. The Military Commissions Act, passed by a GOP-led Congress in September 2006, provided retroactive immunity for CIA interrogators who could have been accused of war crimes for mistreating detainees.

Legal experts say the granting of such retroactive immunity by Congress is unusual, particularly in a case involving private companies. Congress on only a few occasions has given some forms of immunity to law enforcement officers, intelligence officials and others within the government, or to some of its contractors, experts said. In 2005, Congress also approved a law granting firearms manufacturers immunity from lawsuits by victims of gun violence.

"It's particularly unusual in the case of the telecoms because you don't really know what you're immunizing," said Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress. "You don't know what you're cleaning up."

As part of a surveillance package approved Thursday by the Senate intelligence committee, some telecommunications companies would be granted immunity from about 40 pending lawsuits that allege they violated Americans' privacy and constitutional rights by aiding a warrantless surveillance program instituted after the Sept. 11, 2001, terrorist attacks.

The provision is a key concession to the administration and the companies, which lobbied heavily for it. Supporters argue that the legislation is needed to avoid unfair punishment of private firms that took part in good-faith efforts to assist the government.

In arguing in favor of such protections earlier this month, President Bush said that any legislation "must grant liability protection to companies who are facing multibillion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

The head of the intelligence panel, Sen. John D. Rockefeller IV (D-W.Va.), made a similar argument after the bill was approved last week. "The onus is on the administration, not the companies, to ensure that the request is on strong legal footing," he said.

Jeffrey H. Smith, a CIA general counsel during the Clinton administration who now represents private companies in the national security area, said the risk of litigation poses an unfair threat to government officials or others who have good reason to believe they are acting legally. He noted that many intelligence officers now feel obliged to carry liability insurance.

"It seems to me that it's manifestly unfair for the officers that conducted that program and the telecoms to now face prosecution or civil liability for carrying out what was on its face a totally lawful request from the government," Smith said. "It's not the same as Abu Ghraib or a CIA officer who beats somebody during an interrogation."

But civil liberties groups and many academics argue that Congress is allowing the government to cover up possible wrongdoing and is inappropriately interfering in disputes that the courts should decide.

The American Civil Liberties Union has campaigned against the proposed Senate legislation, saying in a news release Friday that "the administration is trying to cover its tracks."

Sen. Russell Feingold (D-Wis.) said in a statement last week that classified documents provided by the White House "further demonstrate that the program was illegal and that there is no basis for granting retroactive immunity to those who allegedly cooperated." His office declined to elaborate on the records, which were reviewed by a Feingold staffer.

Retired Rear Adm. John Hutson, dean and president of the Franklin Pierce Law Center in Concord, N.H., said he is concerned about the precedent that a new immunity provision might set.

"The unfortunate reality is that once you've done it, once you immunize interrogators or phone companies, then it's easy to do it again in another context," Hutson said. "It seems to me that as a general rule, retroactive immunity is not a good thing. . . . It's essentially letting Congress handle something that should be handled by the judiciary."

Staff researcher Julie Tate contributed to this report.


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