Privacy Digest

Bush administration proposes retroactive immunity for phone companies: "Retroactive immunity from prosecution is a beautiful thing if you're a major telecommunications provider in the US, and phone companies are about to receive it if the Bush administration gets its way. The administration's new appropriations request for intelligence agencies was recently disclosed at a hearing of the Senate Select Committee on Intelligence, and it includes a massive gift to the phone companies who have been (can we drop the 'allegedly' at this point?) helping the NSA and other agencies. Prepare 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 government explains 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.' Any court case dealing with the issue would be thrown out of court, and the protection would include all phone company interaction with the intelligence community since September 11.

The issue of whether any of this behavior was legal is not important. The government has already argued that legality doesn't matter when it comes to the phone companies, since even a ruling that their actions were illegal would expose the existence of the intelligence-gathering program in question. Therefore, such cases should not even be considered by the courts.

Kenneth Wainstein, an assistant attorney general at the Department of Justice, told the assembled Senators that this provision of the bill would simply 'fill a gap in our laws' by allowing the phone companies to assist the government.

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