Litigating the War on Terror # 1: Telecom Immunity

Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week.

Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No. 06-1791. Judge Walker of the Northern District of California upheld the constitutionality of § 802, the telecommunications immunity provision of the FISA Amendments Act of 2008. Section 802 requires the dismissal of any lawsuits against telecom companies for their assistance in the Bush Administration's warrantless surveillance of U.S. citizens' phone calls, upon certification by the Attorney General that the telecom company had acted in support of an intelligence program and on written presidential request and assurances of the lawfulness of the warrantless surveillance, so long as the certification was supported by substantial evidence. The court dismissed (although without prejudice) all constitutional and statutory claims against the telecom companies. I previously defended the constitutionality of this provision.

The court rejected a number of due process and separation of powers arguments. Of particular interest to me was an argument based on the venerable-but-never-fully-understood United States v. Klein. The court adopted the (appropriate) view that Klein prohibits Congress from dictating legal and factual findings in a particular case or requiring resolution of particular cases in certain ways, although Congress may amend underlying substantive law and have that law applied even as to pending litigation. Judge Walker concluded, correctly, that this is what happened here. Congress amended substantive law by creating a new immunity (not an affirmative defense*) that protected the telecoms from liability for constitutional violations for acting on presidential request for a wiretap, but left it to the court to decide whether the certification was, in fact, supported by substantial evidence.

I was lead author on a scholars' amicus brief that argued that the immunity provision did not violate Klein and Judge Walker actually cited our brief at length and adopted part of our core argument. Klein (including § 802's validity under Klein) also is the subject of my current major writing project, coming soon to an SSRN mailbox and the desk of all you Law Review editors.

The closest constitutional issue was over non-delegation. Section 802 authorizes the AG to file the certificate, but it does not explicitly compel her to do so or establish any standard (discernable or otherwise) for when she should file a certification. The court ultimately rejected the non-delegation challenge for three reasons: 1) this was not an open-ended delegation of rulemaking authority to an administrative agency, but rather a narrow, focused command to an individual to take a specific, narrow action; 2) there is greater tolerance for more-open-ended delegations in national security, where there is greater legislative/executive joint action; and 3) the legislative history of § 802 gave enough content and context to guide the AG's discretion as to whether and when to certify. I do not know enough about non-delegation to opine as to how persuasive these arguments are; thoughts from readers who know this area?

The other interesting thing was that the court dismissed without prejudice. Plaintiffs represented to the court that newly disclosed documents suggested that the telecoms had engaged in warrantless wiretapping after January 7, 2007, the end point of the § 802 immunity (that is the date that Congress initially retroactively validated the wiretapping that the President had unilaterally authorized following September 11). So it may be that the plaintiffs can plead around the § 802 immunity.

* Judge Walker pointedly rejected our description of § 802 as an "affirmative defense," insisting that it is an "immunity." I am not sure there is a difference. Most immunities are affirmative defenses (although not all affirmative defenses constitute immunities), in the sense of being a legal rule outside the plaintiff's claim that bars liability on certain new facts, which must be pled and proven by the defendant (or, here, the defendant and the government). I have been arguing that telecom immunity is analogous to official immunities under § 1983 (prosecutorial, judicial, qualified), all of which are immunities that also are recognized and treated as affirmative defenses.