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Saturday, June 21, 2008

Telecom Immunity and United States v. Klein

At Balkinization, Marty Lederman discusses the congressional Democratic compromise with (or capitulation to, depending on your perspecive) the White House on retroactive immunity for the telecom companies for their role in warrantless surveillance, announced last Thursday and approved by the House on Friday as part of the reauthorization of FISA. Glenn Greenwald is furious.

The compromise language on immunity is in § 802(a), which provides:

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was --

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

The AG certification must be supported by substantial evidence, although it appears that much of this will be done in secret and not involve extensive evidentiary review.

Marty asks whether this provision violates the principles of United States v. Klein, the opaque 1871 case that stands for some uncertain limitations on congressional control over federal law, federal courts, and federal jurisdiction.

Klein, you may recall, arose out of a dispute over the disposition of Confederate property seized during the Civil War and the effect of presidential pardons. During the War, Congress enacted various laws permitting the disposition of abandoned and captured property. But it also granted to the President a general power to pardon or grant amnesty to any person who had participated in the rebellion, a power Lincoln exercised in 1863, issuing a blanket pardon to all those in rebel states who desired to resume their allegiance to the Union, along with restoration of property rights. Recovery of property could be achieved by filing an action in the Court of Claims and proving that the claimant was entitled to the property and that he had "never given any aid or comfort to the present rebellion." Klein, executor of the estate of Wilson, filed such an action in the Court of Claims and won in 1869, using the blanket pardon as evidence of innocence of having given aid and comfort. In 1870, the Reconstruction Congress established that proof of a presidential pardon was not admissible as evidence of a right to property and, in fact, proof of such a pardon was to be "conclusive evidence that such person did take part in, and give aid and comfort to, the late rebellion, and did not maintain true allegiance or consistently adhere to the United States." In other words, the pardon constituted proof of the acts of rebellion for which the person had been pardoned, but could not be used to prove that he had been pardoned for those acts. In such a case, the courts lost jurisdiction and the action was to be dismissed.

The Supreme Court rejected the limit on its jurisdiction, holding that the 1870 law interfered with the judicial power by prescribing a rule for the decision of a cause in a particular way, requiring the Court to find in favor of the government in all cases involving claims by pardoned owners. There also is language indicating concerns for timing--because Klein won a judgment prior to the 1870 jurisdiction strip, the Court seemed trouble by Congress enacting a rule under which theCourt must deny to itself the jurisdiction already conferred (by the general grant of appellate jurisdiction), only because its decision under settled law was against the government.

No one is entirely clear as to what Klein stands for (which is why Marty used danger quotes when talking about the Klein "doctrine.") Let me suggest six principles for which Klein might stand. Importantly, none of them seems implicated by the telecom immunity in the current bill.

1) Congress exceeds its power vis a vis courts by "prescribing a rule for the decision of a cause." But that cannot be the doctrine. Taken literally, this would prohibit Congress from drafting substantive legislation. A statute, after all, is the rule of decision that dictates to the court how a claim under that statute will come out, once facts are established. And the Court has held that Congress can change the substantive law without running afoul of Klein.

2) Congress cannot change the rules of decision to alter the outcome after the government already has lost the case. This cannot work, because it generally is understood that a court applies the present law in a case, including on appeal. So long as Congress makes its retroactive intent clear, it can change the law between trial and appeal--and alter who wins and loses. The only limit on this is that Congress cannot reopen already-final judgments by changing substantive law.

3) Congress cannot dictate to the courts how to decide particular cases. This is a true principle, but that phrasing is not helpful. Congress functionally tells the court how to decide cases when it prescribes substantive law, dictating how a case shall come out on the showing of some facts. Whether those facts have been shown in a given case is for the court, of course. Plus, I am not sure that I would describe the law in Klein as telling courts how to decide a case. It only told courts how to handle certain evidence; once that evidence came in, the result simply was dictated by the pre-existing law.

4) Congress cannot redefine or dictate to the courts the meaning of a constitutional provision (in that case, the effect of a presidential pardon). This is appealing, although it bleeds into a judicially supremacy that is not particularly popular among most current constitutional and courts scholars.

5) Larry Sager's statement of the principle (in an article linked to by Marty), generalizing somewhat from # 3: "The judiciary will not allow itself to be made to speak and act against its own best judgment on matters within its competence which have great consequence for our political community. The judiciary will not permit its articulate authority to be subverted to serve ends antagonistic to its actual judgment; the judiciary will resist efforts to make it seem to support and regularize that with which it in fact disagrees." On this reading, the problem with the law in Klein was that it compelled the Court to give a particular effect to a presidential pardon, although its best constitutional understanding would give the pardon precisely the opposite effect. Sager found a similar problem with the Religious Freedom Restoration Act (RFRA), which required the Court to apply strict scrutiny to claims of religious freedom, despite its own understanding that strict scrutiny is inappropriate for religious liberty claims.

6) Marty Redish and Chris Pudelski more recently argued that Klein stands for a requirement that, for reasons of popular accountability, Congress cannot hide the substantive ball behind procedural or evidentiary rules. On this view, the problem in Klein was that Congress left substantive law formally in place--an individual who had his land in a seceding state confiscated can recover the land on a showing that he had not given aid or comfort to the rebellion--while using an evidentiary rule to render such proof, and thus recovery, legally impossible. This, they argue, constituted a "political shell game," through which Congress can avoid any political or popular repercussions for unpopular public policies by hiding the true nature of those policies.

Regardless of which of these (individually or in concert) constitutes Klein's "doctrine," none is implicated by the telecom immunity in the new bill. Congress is not attempting to define the scope of the public's Fourth Amendment rights; it is creating a statutory defense against liability (akin the the various official immunities that apply to § 1983/Bivens actions). Congress is not reopening a final judgment or seeking to change the result of an already-decided case; at most, the bill changes substantive law and explicitly makes the new law applicable to pending cases. It does not tell courts how to decide individual cases, beyond describing the legal effect that certain facts (as proven) shall have--which is what substantive law does. The bill does not violate Klein as Sager defines it. Nothing in the bill forces courts to understand or interpret the law in a way different from its best understanding of the law. The bill does not require courts to give different effect to the AG's certification; in fact, a court has (at least formally) the power to measure the certification to ensure it is supported by "substantial evidence," although this may be more of a formality. And Congress is not hiding a change to substantive law behind a procedural mechanism; the bill is explicit that the telecoms are entitled to absolute immunity, so long as they can make a particular evidentiary showing.

In the end, this looks like nothing more than a change in substantive law to provide a defense against liability. We may not like the change on a policy level. But I see nothing in it that raises separation-of-powers concerns.

Posted by Howard Wasserman on June 21, 2008 at 11:16 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink


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"4) Congress cannot redefine or dictate to the courts the meaning of a constitutional provision (in that case, the effect of a presidential pardon). This is appealing, although it bleeds into a judicially supremacy that is not particularly popular among most current constitutional and courts scholars."

Why would this bleed into judicial supremacy? Why isn't it just an uncontroversial application of departmentalism?

Posted by: Anon | Jun 21, 2008 12:01:36 PM

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