Protecting The Wiretappers

This column was written by Aziz Huq.

The professed reasons for protecting communications 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 U.S. 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. 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.

We should be especially suspicious of what Justice Louis Brandeis termed the "men of zeal," who earnestly wrap themselves in the mantle of the public good to do deplorable deeds.

In any case, the Congress that enacted the much-traduced 1978 Foreign Intelligence Surveillance Act, or FISA, considered these problems, and included a solution in the statute. 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. Liability, therefore, 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.

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, a prescient grant of perpetual immunity for U.S. contractors in Iraq. This 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. It has no business on Congress's agenda today.
By Aziz Huq
Reprinted with permission from the The Nation