In the current debate over modifying surveillance law, immunity is perhaps the most contentious issue on the table. The companies clearly want this immunity, since they are being sued by their customers for helping the NSA listen in on customer phone calls. Not surprisingly, the President, the Director of National Security, and many Senators vehemently believe that immunity is appropriate, even necessary, to ensure that telecoms continue to cooperate with the NSA’s surveillance efforts. At the same time, civil liberties and libertarian organizations, as well as many Senators, believe that the telecoms should be held accountable for any unlawful actions that they might have taken, and that any civil liberties violations that may have taken place should be documented by the courts.
In light of these entrenched positions, an amendment to the FISA bill under consideration in the Senate offered by Senators Specter and Whitehouse might, on its surface, seem like a poster-child of American Constitutionalism. Rather than either dismissing the suits entirely or letting the suits go forward in their current form, Specter and Whitehouse want Congress to enact a half-measure. The amendment would substitute the government as the defendant in the suits against the telecoms, allowing the suits to move forward, but holding the government accountable for any wrongdoing. In theory, the telecoms would be relieved of the burden of litigation, and the plaintiffs’ suits would survive. Compromise. Accommodation. Democracy in action. Right? Not so fast.
Because when substitution is really immunity by another name, it isn’t a compromise at all. Then it’s just a misnomer. And that’s what the substitution proposal is. If it is enacted, the claims against the telecoms would be dismissed, and in their place the plaintiffs would be permitted to plead only certain circumscribed causes of action against the United States in their stead. The provision thus transforms the plaintiffs’ existing claims against the telecoms into complaints against the United States and simultaneously narrows the substance of what those complaints may allege.
So the effect of the “compromise” measure is not (as its name implies) to substitute the government as defendant in the existing suits. Rather, it dismisses entire portions of those suits wholesale, forces the plaintiffs to recast their claims in limited terms, and removes entirely any vestige of the fact that the original suits were about what the telecoms did, not what the government did. In short, the litigation no longer will be about whether the telecoms acted unlawfully. Had the plaintiffs wanted to sue the government over these matters (as some have), they would have done so. Their grievance is against the telecoms, and this proposal eliminates any avenue for redress of that grievance.
If pro-immunity members of Congress can muster the support to let the telecoms off the hook and limit accountability for the surveillance program to the government, they can enact an immunity provision. If, on the other hand, Congress prefers to preserve the possibility of a judicial determination of telecom accountability but finds it appropriate to mitigate the effects of that accountability in some way, it has two options. It can either indemnify the telecoms against adverse judgments in the pending suits (after those suits have been permitted to run their natural course), or it can craft a true substitution provision, placing the government in the shoes of the current defendants and making the government liable for the telecoms’ actions.
But to label the Specter/Whitehouse amendment as substitution and offer it as a “compromise” is to pervert the meaning of the word and to obscure the intended transparency of the legislative process.