[Infowarrior] - Protecting the Wiretappers

[Richard Forno]

This article can be found on the web at
http://www.thenation.com/doc/20071015/huq
Protecting the Wiretappers

by AZIZ HUQ

[posted online on September 27, 2007]

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 forpast complicity in
spying on ordinary Americans.

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. 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 US 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.