Indemnification

INDEMNIFICATION....As we all know, the Bush adminstration is hellbent on passing a law granting telecom companies retroactive immunity for any surveillance laws they may have broken in the aftermath of 9/11. But there's an odd aspect to this whole thing: the telecom companies themselves don't really seem to be fighting all that hard on behalf of this legislation. Why?

A couple of days ago I got an email from commenter/blogger bmaz proposing an explanation for this. To be honest, I sort of blew him off at first without reading his argument carefully, which I now think was a mistake. There's some guesswork in what he says, but he's an attorney with considerable experience dealing with wiretapping cases and he suggests that the reason the telcos don't care all that much about the lawsuits being pursued against them is because they almost certainly signed indemnification agreements with the feds back in 2001. Such agreements would force the federal government to pay any legal judgments awarded in suits against the telcos:
It is my contention that the telcos have just such indemnification agreements with the Administration/government, that we do not know about because they are classified and hidden, that so protect them for any liability and losses resulting from the litigation they are faced with; thus they do not need immunity to protect them from potential liability verdicts, they are already covered....As someone that has had dealings with such entities regarding bad/illegal wiretaps, I can attest that they always protect themselves vis a vis the governmental entity they are working for and are not shy about the use of indemnity provisions.
In email, bmaz put it to me even more strongly: "The general counsels and legal departments of telcos are extremely accomplished and always protect their company's interests meticulously. They have been dealing with wiretapping and surveillance agreements with the government and law enforcement for over seven decades, this was not a matter of first impression to them; and in difficult and unique cases, I have never seen them not insist on indemnification. Never."

In the Washington Post today, Dan Eggen and Ellen Nakashima talk to some of the people behind the telco suits, and they don't seem to think that potential payouts are the issue either — which is why the telcos are remaining fairly low key about the whole thing. Rather, it's the Bush administration that wants immunity, and they want it because they're trying to keep the scope of their wiretapping programs secret:
"I think the administration would be very loath for folks to realize that ordinary people were being surveilled," said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which filed the lead lawsuit, against AT&T.

....Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?

Answers to those questions, he said, might reveal that "everybody in the country" has had their phone calls "combed through, and lots of people will be outraged."
Obviously some of this stuff is guesswork, though pretty well-founded guesswork, and bmaz suggests that the press ought to show some interest in the possible existence of indeminification agreements. I agree. If they exist, it would mean the telcs have never been exposed in any way, and immunity would have no effect on their willingness to cooperate with the government in the future. It would also explain why the Bush administration was able to keep the telcos on board so easily even after the Protect America Act expired three weeks ago. Indemnification might be a good subject for some enterprising national security journalist to start prying into.

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