As The New York Times reports this morning, the House leadership’s draft proposal for a surveillance bill contains a provision that would reject giving retroactive immunity to the telecoms. Instead, it would give the courts authorization to hear the classified material at issue in the case — in essence disposing with the administration’s claim of the state secrets privilege. I had a senior House aide walk me through the proposal, which is sure to infuriate the administration.
I outlined the other aspects of the Dems’ draft bill on Friday. The Times adds that the proposal would create “a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs.” That would be in addition to a provision requiring an audit of the warrantless wiretapping program by the Department of Justice’s inspector general, the aide told me.
So here’s how that telecom suit provision would work. The lawsuits against the telecoms for participation in the warrantless wiretapping program are currently tied up in court because the government has asserted the state secrets privilege. It’s a state of affairs that the telecoms themselves are not happy with, as Wayne Watts, AT&T’s general counsel, wrote in a letter to lawmakers last October:
When the subject matter of the litigation involves allegations of highly classified intelligence activities, private parties are disabled from making the factual showing necessary to demonstrate that the cases lack legal merit. If the courts do not swiftly dismiss such cases based on the state secrets privilege, then carriers who are alleged to have cooperated with intelligence activities are faced with years of litigation, at great financial and reputation cost, and are forced to remain mute in the face of extreme allegations, no matter how false.
The House bill seeks to solve this problem by giving the judges hearing these cases authorization to view the classified documents at issue in the case. Here, those would be the orders from the president claiming that the warrantless wiretaps were legal.
The aide said that the provision followed the same guidelines as the FISA law authorized in criminal cases where a defendant was seeking to contest classified information. The judges are required, to the extent they can, provide the plaintiffs information. He explained: “you don’t want the plaintiffs to receive classified information they’re not entitled to, but you do want an adversarial process here.”So the judges would not simply be looking at the classified documents authorizing the warrantless wiretapping and then make a ruling as to whether it was kosher. The plaintiffs would make their arguments based as to the program’s legality based on the judge’s unclassified representations of the program.
It is a solution that the groups suing the telecoms will likely be happy with (and we’ll get you their reaction as soon as we have it). An appeals court is currently weighing whether the government can protect details of the warrantless wiretapping program under the state secrets privilege.
As things currently stand, if the Electronic Frontier Foundation, the plaintiff in the lead suit against AT&T, wins on the state secrets issue, the case is almost sure to be appealed all the way up to the Supreme Court. If they were to win that battle — which will likely take a year or more — the trial court would still be confronted with the problem of assessing the classified information. The aide said that the process outlined in the draft bill is not substantially different from the situation that would arise in that case. What the House bill essentially does is leapfrog over that issue.
Should the House leadership bring this bill to a vote this Thursday, as the Times reports, there’s almost sure to be a long road ahead. As I reported on Friday, Senate intelligence chairman Jay Rockefeller (D-NY) does not approve of certain provisions in the House bill. And without his support, no bill is likely to go far in the Senate.