Former U.S. attorney general and barbershop quartet member John Ashcroft, in a wonderful Op/Ed piece in the New York Times
, makes a plea for telecom immunity for the wiretapping they were doing without warrants. Little mention is made of the fact that, if the telecoms are haled into court and they are found by a court to have violated the law, then the people in the maladministration that told
them that this was just okey-dokey and go ahead and wiretap to your heart's content would also
have been violating the law as fellow conspirators ... and that would include ... umm, people in the maladministration like ... umm, Ashcroft
So let's examine the carcass:
There are many complex and difficult issues associated with these debates, but whether to terminate the huge lawsuits that have been filed against the nation’s major telecommunications carriers accused of cooperating with classified counterterrorism programs is not one of them. Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.
So there's "complex and difficult issues associated with these debates" and reasonable people can disagree, but there's no possible debate on this one point, so don't even argue
about whether this immunity should be granted. Wonder why (well, outsidee of the fact I just brought up above) ... let's see:
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.
Typo there, John. Should be:
"[T]he activities in question were purportedly
'authorized' by the president and alleged
to be lawful."
If the telecoms "did not do what the plaintiffs claim", then no bill (and no amnesty) is needed. Plaintiffs lose. CivPro 101.
What if the carriers "did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were [purportedly] authorized by the president and [alleged] to be lawful...."? Hate to say it, but the people that get to "determine" lawfulness is the courts
. That's their freakin' job
and it's been that way ever since even before Marbury v. Madison
!!! Not OLC. Not the preznit's consiglieres. Not the very people that wanted the telecoms to do the snooping in the first place
. Not to mention that telecoms have their own fleet of lawyers to work out legal compliance issues and the consequences of their actions. And it doesn't take more than a 1L intern to figure out that if the text of the law (say, 50 USC §§
1809-1810) says it's illegal, and you're subject to criminal and civil penalties for doing it, maybe you shouldn't do
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.
Ahhh, the "Nürnberg" defence. "Just following orders from on high." If your lawyers tell you 'no problemo', you're off the hook. The Mafia's gonna love that one: "But, your Honour, I was just following legal advice...."
Oh, nevermind.... Ashcroft said "American
" ... and "corporation
". The rule are different; I forgot....
As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality....
There is no exception for "circumstances" in the FISA law as it was. FISA described what could be done in emergency situations (and specified for how long such could be done).
... Moreover, for an initiative like the terrorist surveillance program — which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution — a telephone company simply has no expertise in the relevant legal issues.
The gummint has failed to advance the "AUMF"/"war powers" theory recently when actually brought into court (and it has been rejected by the courts) in other contexts. Nonetheless, the FISA laws as they existed
specified what could be done in the case of actual war ... and what the maladministration asked the telecoms to do was not covered by that FISA provision. And to say that telecoms have "no expertise in the relevant legal issues" is rather insulting ... to the telecoms themselves.
Ashcroft starts spiralling down with weaker and more inane justifications:
One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector.
Yes. See, e.g.
What's Ashcroft's solution, you might ask? This:
For domestic purposes, proper accountability already exists — through the people’s elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully.
I see. So, I guess what we need is Congress to pass laws if they think that things aren't being done that aren't right. Ummm, but waiddaminnit, didn't they already do that
? Oh, yeah, right, back in 1978, after the last time
some Republican preznit tried warrantless spying. So the maladministration ignores the laws, and if Congress objects, they can pass more
laws that the maladministration can ignore. Or better yet, Congress can pass laws ... as long as they're laws that just make whatever the maladministration has done legal ex post facto
. Works for me.... There's just a lot of people out there that are real silly nowadays with this inane and unworkable suggestion that the maladministration, if it thinks the laws should be different, should ask for Congress to change the laws beforehand
(and then agree to abide by whatever Congress agrees to).
Senator Feingold responds
(h/t to ThinkProgress