Legal Commentary

We Write Letters

By Professor University of Miami School of Law

Just sent this:

Dear Mr. Hulse,

Thank you for your informative article “House Leaves Surveillance Law to Expire” in today’s paper.

I was struck, however, by the following sentence, and I wonder if you could help me understand the state of play. You write, “The main sticking point is a provision in the Senate bill that provides legal immunity for telecommunications companies that, at the Bush administration’s request, cooperated in providing private data after the Sept. 11, 2001, attacks.”

I was under the impression that there was now substantial evidence that in fact these requests long pre-dated 9/11 (see, for example, [URL] and [URL])

You write with some authority that the issue is entirely post-9/11. Have these accounts been debunked, or is there some other reason to disbelieve them?

As I am sure you appreciate, the issue of when the requests were first made is not irrelevant to whether the administration and its enablers should get to prevent discovery as to what exactly happened.

Best regards,
Michael Froomkin
Professor of Law, University of Miami

Update: Reading Political Animal, I see something which makes me think that maybe Mr. Hulse had a good reason to write it the way he did:

The Senate version of telecom immunity in S.2248 applies only to activities taken after 9/11. There have been reports of possibly illegal NSA/telecom activities being initiated several months before 9/11, but S.2248 wouldn’t apply to them. Here’s the relevant text:

[A] covered civil action…shall be promptly dismissed, if the Attorney General certifies to the court that (A) the assistance alleged to have been provided by the electronic communication service provider was (i) in connection with an intelligence activity involving communications that was (I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States….

So maybe Hulse got it just right? Note, however, that the evidence we have is also consistent with this scenario: the administration started pressuring the telcos for the wiretaps long before 9/11…but they only started cooperating afterwards.

Full post as published by Discourse.net on February 15, 2008 (boomark / email).