Retroactive Immunity and Administrative Discipline: It’s Not About Telcos

nixonillegal.320.240.jpg Retroactive immunity for whom?
Telecoms already have immunity under existing FISA law where they acted pursuant to written government certification or where they prove they acted in good faith (see 18 USC 2520 (d)). There is no reason that the federal courts presiding over these cases can’t simply make that determiniation, as they do in countless other cases involving classified information.

Jay Rockefeller’s unintentionally revealing comments, Glenn Greenwald, Unclaimed Territory,, Thursday January 24, 2008 07:33 EST

There’s even a two year statue of limitations in the Code.

Here’s one version of what this is really about:

(f) Administrative Discipline.— If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

18 USC 2520 (f)

Now it’s not clear that the Inspector General is the most appropriate officer to deal with the illegal orders for wiretapping, since the department or agency concerned is the White House, specifically George W. Bush and Richard B. Cheney. But the point remains that what this attempt to legislate retroactive legality of warrantless wiretapping is really about is immunizing the president who ordered it (he has explicitly said he ordered warrantless wiretapping outside of FISA) and the vice president who still defends it.

Senator Saxby Chambliss tells me:

The world changed on September 11, 2001, and it is vitally important that the President of the United States have the power and authority to act on information to protect the American people from future acts of terrorism by al- Qai da ‘ and others who target the United States.

—”Responding to your message”, Senator Saxby Chambliss, 24 Jan 2008

The president already has that power and authority. He doesn’t need to subvert the rule of law to do so. If he does, he gives away a prize al Qaida never could have taken.

As I said back in September when retroactive telecom immunity was proposed, Nixon already summed up the situation:

Well, when the president does it that means that it is not illegal.

Richard M. Nixon interviewed by David Frost, 19 May 1977.

Is that what we want?


What’s this got to do with net neutrality? Retroactive immunity would be parlayed into a get out of jail free card for promiscuous filtering of all Internet traffic by ISPs. Plus, Why would an administration that currently has access to all data going over the Internet want more competition in the ISP market?