Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say

Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say
Retroactive Protection Could Create Problems in the Future

By Dan Eggen
Washington Post Staff Writer
Monday, October 22, 2007; Page A05

When previous Republican administrations were accused of illegality in the FBI and CIA spying abuses of the 1970s or the Iran-Contra affair of the 1980s, Democrats in Congress launched investigations or pushed for legislative reforms.

But last week, faced with admissions by several telecommunication companies that they assisted the Bush administration in warrantless spying on Americans, leaders of the Senate intelligence committee took a much different tack -- proposing legislation that would grant those companies retroactive immunity from prosecution or lawsuits.

The proposal marks the second time in recent years that Congress has moved toward providing legal immunity for past actions that may have been illegal. The Military Commissions Act, passed by a GOP-led Congress in September 2006, provided retroactive immunity for CIA interrogators who could have been accused of war crimes for mistreating detainees.

Legal experts say the granting of such retroactive immunity by Congress is unusual, particularly in a case involving private companies. Congress on only a few occasions has given some forms of immunity to law enforcement officers, intelligence officials and others within the government, or to some of its contractors, experts said. In 2005, Congress also approved a law granting firearms manufacturers immunity from lawsuits by victims of gun violence.

"It's particularly unusual in the case of the telecoms because you don't really know what you're immunizing," said Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress. "You don't know what you're cleaning up."

As part of a surveillance package approved Thursday by the Senate intelligence committee, some telecommunications companies would be granted immunity from about 40 pending lawsuits that allege they violated Americans' privacy and constitutional rights by aiding a warrantless surveillance program instituted after the Sept. 11, 2001, terrorist attacks.

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