November 19, 2008 | By Kevin Bankston

What Obama Can and Should Do to Stop Telecom Immunity

Yesterday, the New York Times ran the story "Early Test for Obama on Domestic Spying Views", describing the national security-related issues facing the incoming Obama Administration. Chief among them is the issue of immunity for telecoms that illegally assisted in the National Security Agency's warrantless wiretapping program:

In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.

The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.

A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.

“Nothing will be over by Jan. 20,” when Mr. Obama is inaugurated, Ms. Cohn said.

As President, it will be up to Obama whether or not the Administration wants to continue seeking dismissal of the lawsuits against AT&T and other telecoms based on the immunity provisions of the FISA Amendments Act (FAA). Specifically,

President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd's amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government's motion to dismiss the lawsuits based on the immunity statute. Or,

President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Consistent with his support of Senator Bingaman's proposed FAA amendment to delay implementation of the immunity provisions, Obama could instruct his new Attorney General to ask the court for a temporary stay of the immunity proceedings. That would give the Administration time to review the classified details of the NSA program as well as the FAA-mandated reports about the program that are expected by this July from the Inspectors General of the Department of Justice, the NSA, and other agencies involved in the program. After having reviewed all the facts, the new administration can then re-evaluate whether it wants to continue to press for immunity in court, or drop its motion to dismiss and let the cases against the telecoms continue. Or,

President Obama can choose not to appeal if the immunity statute is found unconstitutional. If, after the hearing on December 2nd, Chief Judge Vaughn Walker of the federal Northern District of California agrees with EFF that the immunity statute is unconstitutional and denies the government's motion to dismiss, Obama could instruct his new Attorney General to not appeal that decision to the Ninth Circuit Court of Appeals.

All of these are things Obama could do — on his own and without any help from Congress — to stop the implementation of the immunity scheme that he repeatedly opposed during his presidential campaign.

These recommendations aren't EFF's alone: as part of the transition roadmap published yesterday by a broad coalition of groups including EFF, seventeen different civil liberties organizations signed onto national security surveillance recommendations that included the proposition that President Obama should "[d]irect the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate."

We at EFF — along with many of Obama's supporters — were sorely disappointed when he failed to uphold his promise to filibuster any bill that contained immunity, and instead reversed course and ultimately voted for passage of the FAA. But, as Obama himself said when defending his support for the FAA:

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

As we all know, those efforts to amend the FAA by stripping immunity out of the bill or delaying its implementation failed, despite Obama's support. But now, as President, Obama will have the power to make things right. By taking one of the above steps after he takes office on January 20th, Obama would prove that he meant what he said when he opposed telecom immunity, that he stands behind the votes he made against immunity, and that his claims of a coming "change" when it comes to reversing the Bush Administration's excesses are more than empty rhetoric.

If Obama truly supports change — if he truly supports a more open and accountable federal government, where Americans have the tools to demand accountability for past abuses — then he should end the Bush Administration's attempt to cover-up lawbreaking by the NSA and its telecom collaborators, and ensure that the judicial branch is finally allowed to rule on the legality of NSA program.


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