Tim Lee

Was It Illegal or Not?

I’m confused about how the argument for telecom immunity is supposed to go. Here’s the National Review editorial board’s argument:

Regardless of what Democrats think about the legality of the program, it is grossly unfair and counterproductive to strike out against the telecoms. The telecoms acted patriotically and in good faith. Indeed, every federal appellate court to rule on the issue — including the specialized appellate court created by FISA — has held that FISA did not and could not strip the executive branch of its constitutional authority to order surveillance, without judicial participation, in order to protect the United States from foreign threats.

So if the courts all think that the president has an inherent power to engage in warrantless surveillance, and that that includes the power to immunize telecom companies for doing things that would otherwise be against the law, why haven’t AT&T and Verizon made that argument in court? And if the courts already agree with the conservatives’ legal theories, then why can’t Congress just wait for the telecoms’ ultimate victory as the cases are thrown out constitutional grounds?

The argument for retroactive immunity is fundamentally in conflict with the rule of law. If what the telecom firms did was legal, no immunity is necessary. If what the telecoms was illegal, then they shouldn’t have done it, with or without “assurances” from the White House. The fact that they’re pushing so hard for immunity is evidence enough that they, at least, believe that what they did was probably against the law.

February 15, 2008 | Comments |

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    I can see acting "patriotically and in good faith" when it's a hot pursuit situation, when nobody has time to wake up the corporate counsel or a FISA judge before tapping communications related to a terrorist attack in progress.

    But that doesn't justify a program much longer than the time scale required to get a warrant. Any sensible corporate counsel would say, look, give us a warrant here or we're going to have to stop taking this legal risk with our shareholders' money.
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    Tim, the question of legality is so quaint. If it wasn't legal, they will make it so.

    The only law that GWB and his cronies acknowledge is the spoken word of the Executive Branch, which is pretty frightening considering how articulate they are. So the real question is: Do they have the power they think they do?

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