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Memo to House Intelligence Committee on Telecom Immunity

Emily Berman addresses the issues with granting immunity to telecommunications carriers and proposes alternatives to awarding them complete amnesty.

Published: October 11, 2007
As part of the federal government’s effort to “modernize” the Foreign Intelligence Surveillance Act (FISA), the Bush Administration is demanding immunity for telecommunications carriers, or telecoms, that were allegedly complicit in domestic electronic surveillance and data-collection in violation of federal law.

This memorandum first argues against granting amnesty to the telecommunications carriers for their alleged involvement with the government’s warrantless surveillance of Americans’ communications and communications records.  Its principal flaw is simple: Such a provision would sap the effectiveness of the regime imposed by FISA  to guard against wiretapping outside the law.

Second, the memo addresses alternatives to amnesty.  The BrennanCenter is emphatically opposed to any kind of immunity or amnesty.  While no legislation on immunity would be optimal, these alternative measures are preferable to complete amnesty.  Among the various alternatives considered, a cap on damages is the least objectionable option, followed by government indemnification of the telecoms.  In essence, any alternative that leaves the government or government officials as the sole defendant raises too many problematic issues to be considered viable.
Emily Berman works to protect individual rights through the promotion of effective oversight mechanisms for the United States' national security policy. Before joining the BrennanCenter, Ms. Berman was at New York University School of Law pursuing her LL.M. in International Law. She clerked for Judge John M. Walker of the Second Circuit Court of Appeals (2005–06) and graduated magna cum laude from New York University School of Law (2005), where she was Editor-in-Chief of the New York University Law Review, a Furman Scholar, a Pomeroy Scholar, and an Allen Scholar. She was also the recipient of the George P. Foulk Memorial Award for outstanding sincerity and distinguished scholarship, the Jerome Lipper Price for outstanding work in the area of international law, and the David Friedman Memorial Award for outstanding achievement in evidence. While a law student, she worked with the State Department’s Office of the Legal Advisor, the Lawyers’ Committee for Human Rights (now Human Rights First), and the International Center for Transitional Justice. Ms. Berman is a 1994 graduate of DukeUniversity, where she received an A.B. in Political Science.