Protecting the Wiretappers

*Cross-posted from TheNation.com

Bowing to White House pressure, Congress passed the 2007 Protect America Act in August, eviscerating any meaningful checks and balances on a sweeping range of governmental surveillance. Now that it has protected telecommunications giants from all future liabilities, the Administration is demanding they be granted amnesty from legal liability for past complicity in spying on ordinary Americans.

The House Intelligence and Judiciary Committees this week debated and marked-up a bill, the RESTORE Act, that undoes some—but not allof—the damage wrought by Protect America. So far, the leadership of those committees has beaten back Bush Administration-backed proposals by Rep. Peter Hoekstra (R-MI) to grant the telecoms retroactive immunity.

Congress should now stay the course, resisting what will be rising Administration pressure to give the telecoms amnesty for their past illegal acts.

The professed reasons for protecting commmunications giants from liability in secret wiretapping are no less disingenuous now than they were when these rightfully defeated provisions were first proposed after 9/11. Rather than promoting security, the push for telecom amnesty furthers the larger ideological ambitions of the Bush Administration: expanding government power while choking off accountability for the way that power is used.

Director of National Intelligence Michael McConnell and his allies offer four main arguments in support of the amnesty proposals, each more vacuous than the next.

First, McConnell argues that lawsuits could “bankrupt” the companies. If McConnell is to be believed, we must choose between our civil liberties and our cell phones. But his claim is not credible. At best, such lawsuits would face a long and torturous path to any money judgment, including multiple trips to the US Supreme Court. This path will take years to travel, with the odds stacked against a loss for the telecoms.

Perhaps the best indicator of the fiscal hit the telecoms are likely to take from those lawsuits is the stock market itself—and the evidence there scotches McConnell’s claim. Just one day after the Electronic Freedom Foundation filed a class-action suit against AT&T for complicity in the government’s privacy invasions, the company’s stock rose to 50 cents above its pre-lawsuit closing price (from $26.05 the day before the suit was filed to $26.55 one day after). And when AT&T’s motion to dismiss the case was denied, the price fell 17 cents, to $27.30. Clearly, the market is not impressed by the suits’ potential for bankrupting anyone.

Second, intelligence sources have told Newsweek that they are in “near panic” that telecoms will be “forced to terminate their cooperation” with the NSA for fear of liability. This might surprise the White House—since it has already immunized the telecoms from liability for their cooperation moving forward. Simply put, telecoms already have amnesty for what they do in the future.

Third, amnesty proponents turn to the familiar tactics of fear: they argue that permitting lawsuits against telecoms to proceed will irrevocably undermine America’s safety by revealing our classified means of electronic intelligence-gathering to the world. This is yet another specious contention. Courts have multiple tools in their kit to preserve the secrecy of validly classified information, tools the government has already exploited to hide the truth regarding various practices, from torture, to extraordinary rendition, to warrantless wiretapping.

The utter lack of connection between a stated and a real security threat has of course never stopped this Administration from pressing a measure—from condoning torture to the repeal of habeas corpus. Expect, therefore, more cries of wolf in the coming weeks.

Finally, there is the familiar claim that because the telecoms were acting in the name of national security, they deserve praise, not liability. In Rep. Hoekstras words, not including retroactive liability protection places the burden of security on the backs of patriotic Americans.

But people do all sorts of bad things ostensibly because—or in the belief that—they are furthering national security. Western state politicians and private landowners, for example, eagerly abetted the internment of Japanese-Americans during World War II. That some believed they were acting in the name of the public good hardly excuses their actions.

Indeed, in this instance, the Congress that enacted the much-traduced 1978 Foreign Intelligence Surveillance Act, or FISA, considered the telecoms situation, and included a solution in the statute that allowed them to be patriotic and also comply with the law. Understanding that the act’s prohibition on warrantless surveillance would not work without private companies’ compliance, the 1978 Congress expressly included liability for telecoms, but carved an exception when they secured a certification from the Attorney General that the surveillance was lawful. Hoekstra’s rhetoric blatantly disregards the fact that the telecoms could have easily complied with the law by getting such certification. Yet amnesty today is on the table only because they disregarded the law, failed to avail themselves of the safe harbor, and violated the Fourth Amendment rights of innocent Americans.

Liability, moreover, is a pillar of FISA’s operation—and is carefully defined to reward good-faith action while encouraging compliance with FISA’s limitations on permissible surveillance. Current proposals to immunize the telecoms would wreck this carefully tuned balance. They would signal to the telecoms that if they choose to violate the law in the future with impunity—a devastating message to be sending in the context of the serial law-breaking that has characterized this Administration.

Today, because of the government’s lack of transparency in its high-tech hunt for terrorists, we do not even know if the telecoms acted in good faith and secured these certificates. We know neither the breadth of the surveillance nor the degree to which telecoms have handed over calling records enabling government data-mining. We do not know how many domestic calls were monitored. And we do not know what was done with the information that was gathered.

Granting amnesty to telecoms would signal Congressional acquiescence in an illegal course of conduct. It would send a loud message to other businesses and individuals: “Don’t worry if the executive branch comes to you secretly and demands that you violate the law or impinge on basic liberties. We’ll bail you out.” And it would stymie lawsuits that not only serve accountability, but also provide paths to illuminate what harm has been done to our rights.

In seeking amnesty for the telecoms, the White House is striking the same chord it hit when President Bush pardoned Lewis “Scooter” Libby: crimes may have been committed, but so long as they are done in the name of the White House, there will be few consequences. Indeed, Michael McConnell’s (flawed) argument about bankrupting the telecoms harmonizes with President Bush’s claim that Libby’s sentence was too harsh. Companies and individuals that break the law without the benefit of the Executive’s blessing pay the consequences of their unlawful actions every day.

It also echoes L. Paul Bremer’s Order 17, an ironically prescient grant of perpetual immunity for US contractors in Iraq. Here is another case in which government power has been carefully delegated in a way that cuts off accountability.

Amnesty, either by presidential pardon or by legislation, conveys the regrettable impression of a two-track justice system: violators of the law are judged differently, depending on their proximity to political power. Power without accountability is a prescription either for incompetence or criminality. As the House Judiciary and Intelligence Committees rightly concluded, it has no business on Congress’s agenda today.

  Aziz Huq: “Protecting the Wiretappers” (pdf)