July 9, 2008 10:32AM # Plainly Unreasonable By [Timothy B. Lee](https://www.cato.org/people/timothy-lee) --- SHARE Hans Bader [links](http://www.openmarket.org/2008/07/08/former-aclu-leader-congress-should-pass-fisa-bill/) to a [prior post](http://www.openmarket.org/2007/10/31/no-liability-for-assisting-in-fight-against-terrorism/) purporting to show how the immunity provisions of the FISA bill will “end a legal double standard that discriminates against the telephone companies.” In particular: > It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees. That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around. There are two problems with this. First, the “qualified immunity” standard Bader discusses is *not* the standard that the “compromise” FISA legislation would establish. Rather, the legislation would require judges to dismiss the lawsuits if the defendants can produce a piece of paper from the government stating that the program was legal. Since we already know that the companies have such pieces of paper, that imposes no real restriction at all. More importantly, the theory that warrantless wiretapping is legal *was* “plainly unreasonable.” Don’t listen to me, listen to Judge Vaughn Walker, a Republican appointee, who [wrote](http://www.eff.org/nsa/hepting) in 2006: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.” ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).