In today’s New York TImes, John Ashcroft jumps on the bandwagon for giving telcos blanket immunity for their participation in illegal wiretapping programs:
At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not “blanket immunity,” as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.
Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.
To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?
A couple of points immediately spring to mind here. In the first place, if “longstanding principles of law” tell us that the telcos are “entitled to rely on assurances of legality from officials responsible for government activities,” then why is new legislation necessary? Why can’t AT&T simply invoke those principles in court and get the lawsuits dismissed without Congress having to get involved?
Second, the claim that this is not “blanket immunity” is absurd. Obviously, AT&T and Verizon aren’t going to hand over customer data the executive branch hasn’t asked for. And the executive branch would never admit that its information requests were unlawful. So granting immunity for any requests the executive branch says are lawful means granting immunity for any conceivable information request. That’s blanket immunity; there’s nothing “limited” about it.
Third, the “principle of justice” Ashcroft is looking for here is the warrant requirement of the Fourth Amendment. The fundamental principle of the Fourth Amendment is that the judicial branch, not the executive branch, gets to decide when a search is “authorized.” No matter how many executive branch officials “review and approve” a search, the search isn’t constitutional unless it’s approved by a judge.
But actually, if I were in Congress I would be willing to call Ashcroft’s bluff. I’d support immunity legislation on the condition that the president appoint a special prosecutor that would commence a top-to-bottom review of all the wiretapping programs the White House has undertaken, and bring criminal charges against the relevant administration officials (including, ahem, Ashcroft himself) if he finds that any of them ran afoul of the law. Of course, the White House would never consent to that. Because they don’t really believe that executive branch officials should “deal with the consequences” of the decisions they make. To the contrary, I suspect one reason the White House is pushing so hard for immunity is that it would be embarrassing if a court found participation in its programs was illegal. They don’t believe anyone should suffer consequences for breaking the law.
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