Retroactive Immunity Provided by the FISA Amendments Act of 2008

摘要

On July 10, 2008, P.L. 110-261, entitled the FISA Amendments Act of 2008, was signed into law. Although many of the changes enacted by the FISA Amendments Act were controversial, one particularly contentious issue was whether to grant retroactive immunity to telecommunications providers that may have facilitated warrantless surveillance by the federal government under a Terrorist Surveillance Program between 2001 and 2007. Proponents of retroactive immunity argued that it was necessary to assure private cooperation with critical intelligence investigations. On the other hand, opponents of retroactive immunity argued that its inclusion undermined the statutory penalties that were designed to deter unlawful intrusions into individual liberties. This report discusses the various retroactive immunity mechanisms that were proposed to be included in the FISA Amendments Act, one of which was ultimately adopted, and their likely effect on lawsuits facing telecommunications providers. Retroactive immunity is more than simply protection from liability; it can also act as protection from the cost of litigation. Without retroactive immunity, many legal issues would need to be addressed, possibly at great expense, in order to resolve these lawsuits. The plaintiffs would need to show that the actions of the defendants were not lawful. The Bush Administrations theory of inherent wiretapping ability might need to be litigated. Additionally, the applicability of the state secrets privilege to these cases might be the subject of litigation. As enacted, the FISA Amendments Act lays out a procedure for the Attorney General to bring about the dismissal of lawsuits alleging unlawful participation in the Terrorist Surveillance Program (TSP). In order for a suit to be dismissed by a court, the Attorney General must certify that the defendant provided assistance in connection with the TSP and was given written assurances that the program was authorized by the President and determined to be lawful. The Attorney General could also certify that the alleged assistance was not in fact provided by the defendant. All parties are permitted to submit documents and arguments relevant to dismissal which the court may consider. Dismissal is only proper if the court finds, based upon its review, that the Attorney Generals certification is supported by substantial evidence.