[JURIST] Former US Attorney General John Ashcroft said in a Monday New York Times op-ed that he supports granting retroactive immunity to telecommunications companies [JURIST report] that complied with government requests for phone records following the September 11, 2001 terrorist attacks. Ashcroft's comments come as the Senate Judiciary Committee [official website] is considering the FISA Amendments Act of 2007 [PDF text], which includes a provision granting immunity to telecommunications companies from privacy lawsuits related to their participation in the NSA warrantless surveillance program [JURIST news archive]. Ashcroft commented that:
There are many complex and difficult issues associated with these debates, but whether to terminate the huge lawsuits that have been filed against the nation's major telecommunications carriers accused of cooperating with classified counterterrorism programs is not one of them. Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.Last week, a Bush administration official called the Senate's proposed domestic surveillance bill "generally a strong piece of legislation" [JURIST report], but repeated demands that telecommunications companies be provided immunity from privacy lawsuits related to their participation in the NSA surveillance program. In early August, Congress passed [JURIST report] the Protect America Act 2007 (PAA) [S 1927 materials], which gives the executive branch expanded surveillance authority for a period of six months while Congress works on long-term legislation to "modernize" FISA.
At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not "blanket immunity," as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.
Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company's, to deal with the consequences if they are wrong.
To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?