Let’s Not and Say We Did

by on November 10, 2007 · 4 comments

One of my favorite things about TLF is our ability to have vigorous but respectful disagreements. I appreciated Hance’s post making the case for telecom immunity, but I have to say I didn’t find it very persuasive.

I don’t understand the argument that telecom providers were facing “extraordinary circumstances” that led them to break the law. I might have some sympathy for that argument if we were talking about a program that occurred on 9/11 or in the chaotic days that followed. If the telecom providers has simply made rash decisions in their haste to prevent another attack and inadvertently broke the law, I might be sympathetic. There might be a plausible argument for providing immunity for information shared between, say, September 11 an December 31, 2001. But that’s not what we’re talking about here. If the Klein declaration is accurate—and AT&T hasn’t disputed it—the program at issue in that lawsuit started in 2003, and as far as we know it continues to this day. The Bush administration could have gone to Congress any time in 2002 and requested changes to the relevant statutes. And AT&T and Verizon could have—and indeed under the law were obligated to—do what Qwest did and tell the administration to come back when they had a warrant. They didn’t do that, and in my view they ought to be held responsible for breaking the law.

I don’t find the Posner and Kristol/Schmidtt hypotheticals very persuasive, but even if you do, they’re really beside the point. If current standards for obtaining warrants in terrorism cases are too stringent, the Bush administration should have gotten Congress to change the rules. We could have had this debate six years ago, Congress could have made a decision, and then AT&T and Verizon could have participated in whichever activities Congress approved with a clean conscience. Instead, the telcos helped the Bush administration ignore Congress, evade court scrutiny, and violate the clear requirements of the law.

So even if prospective rule changes are necessary, that doesn’t in any way justify retrospective white-washing of past lawbreaking. Granting telecom immunity will set the precedent that companies can break the law on the say-so of the executive branch, without needing to worry about what Congress or the courts might have to say about it. Which would mean the end of meaningful Congressional or judicial oversight over surveillance activities. Because telecom companies will know perfectly well that if they break the law at the request of the executive branch, the executive branch will go to the mat to make sure the law isn’t actually enforced and companies aren’t actually found liable. Once that precedent is set, it won’t matter what other rules Congress might enact, because telecom companies will have absolutely no incentive to follow them, and plenty of incentive (read: government contracts) to do the president’s bidding.

One final point: we don’t have to speculate what the world would look like if the executive branch had the power to eavesdrop on whomever it liked without meaningful judicial oversight. Martin Luther King was the most famous of the dozens of anti-war activists, civil rights leaders, journalists, and other undesirables whose communications were bugged by the Johnson and Nixon administration. There’s no evidence that the Bush administration has done anything like that. But if we eliminate meaningful judicial oversight of the executive branch’s surveillance activities, there’s every reason to think that a future administration will.

Previous post:

Next post: