Tag: telecom immunity

9th Circuit Upholds Telecom Immunity Under FISA in NSA Lawsuit

The 9th Circuit Court of Appeals today upheld the constitutionality of FISA's grant of immunity to telecom companies assisting the Government in terrorism investigations. The opinion is here.

The statute is § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a, known as the FISA Amendments Act of 2008.

The complaints were filed in the wake of news reports in December 2005 that President Bush had issued an order permitting the NSA to conduct warrantless eavesdropping. Under a program known as the Terrorist Surveillance Program (“TSP”), the NSA “had obtained the cooperation of telecommunications companies to tap into a significant portion of the companies’ telephone and e-mail traffic, both domestic
and international.”


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Telecom Immunity Codifies Bush's Unitary Executive Theory?

Sen. Whitehouse raised the red flag that classified documents revealed that Bush's legal justification for warrantless domestic spying advocated a "legal doctrine for presidential lawbreaking." Sen. Dodd argued that Bush should allow all Senators to read the documents before voting on telecom amnesty.  Sen. Whitehouse obtained the declassification of 3 principles contained in the documents.   These 3 principles constitute general elements of Bush's unitary executive theory, which is a doctrine for presidential lawbreaking. So, how is unitary executive theory relevant to telecom immunity? One answer is that the authority and lawfulness clauses of the telecom immunity may be interpreted by Bush in a signing statement or the courts as Congress codifying into law his theory of the virtually unlimited powers of the unitary executive which trump legislation. This telecom immunity clause would then provide Bush with a nonfrivolous argument that Congress ratified his unitary executive theory, which would provide Bush with retroactive immunity.  

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