Leading telecom advocate Fred Hiatt this morning turned over his Washington Post Op-Ed page today to leading telecom advocate Jay Rockefeller, the Democratic Senate Intelligence Committee Chairman, to explain why it is so "unfair and unwise" to allow telecoms to be sued for breaking the law. Just as all Bush followers do when they want to "justify" lawbreaking, Rockefeller's entire defense is principally based on one argument: 9/11, 9/11, 9/11. Thus he melodramatically begins:
In the immediate aftermath of Sept. 11, the Bush administration had a choice: Aggressively pursue potential terrorists using existing laws or devise new, secret intelligence programs in uncharted legal waters. . . .
Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.
Using 9/11 to "justify" telecom amnesty is not only manipulative, but also completely misleading. Telecoms did not merely break the law in the intense days and weeks following the 9/11 attacks. Had they done only that, there would almost certainly be no issue. Indeed, the lead counsel in the AT&T case, Cindy Cohn, said in the podcast interview I conducted with her last week that had telecoms enabled illegal surveillance only in the immediate aftermath of the 9/11 attacks -- but then thereafter demanded that the surveillance be conducted legally -- EFF almost certainly would not have sued at all.
But that isn't what happened. Both the Bush administration and the telecoms jointly broke the law for years. Even as we moved further and further away from the 9/11 attacks, neither the administration nor the telecoms bothered to comply with the law. The administration was too interested in affirming the theory that the President could exercise power without limits, and the telecoms were too busy reaping the great profits from their increasingly close relationship with the Government.
The 9/11 attacks could be a coherent (though not persuasive) defense to lawless surveillance on September 13, 2001 or even on October 13, 2001 -- but not throughout 2002, 2003, 2004, 2005, 2006 and into 2007. That is nothing more than deliberate lawbreaking motivated by limitless power (in the case of Bush) and swelling profits (in the case of telecoms). Rockefeller's exploitation of 9/11 and "patriotism" to justify years of illegal spying is shameless in the extreme, and the only thing "unfair and unwise" is to pass laws with no purpose other than to relieve the lawbreakers of all consequences.
As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future.
Here again, Rockefeller is doing nothing more than dutifully reciting the standard Bush script used time and again to "justify" lawbreaking: illegal behavior must be allowed because it is paramount that everything remain secret. Thus, we must allow lawbreakers to be free -- when they torture, abduct innocent people, spy on Americans with no warrants -- because what they did, even though it's against the law, is Secret.
Rockefeller's assertions here are again totally misleading. Courts review classified material all the time. FISA and other laws specifically contain safeguards to ensure that courts can prosecute and otherwise adjudicate lawbreaking while ensuring that genuinely classified information remains concealed. As Cohn explained: "the FISA law has very strict limitations, and allows the judge to exercise a lot of discretion, to keep things that are legimitately national security secrets, secret."
Moreover, the critical facts demonstrating the illegal surveillance here are already public. The Bush administration has admitted openly that it spied on Americans without warrants (which is illegal) and EFF has obtained the AT&T documents detailing its illegal cooperation with the NSA in establishing a domestic dragnet.
Rockefeller's argument is also corrupt because, if accepted, it would mean that high government officials and corporations have a general license to violate our intelligence and surveillance laws with impunity (which is exactly what they have had over the past six years). Lawbreakers have the Jay Rockefellers and Fred Hiatts of our Beltway elite to insist that they cannot be punished because the illegal activities in which they engaged must stay secret.
And that really brings us to the heart of the matter. Rockefeller, Hiatt and their friends plainly see themselves -- along with the telecom executives and lobbyists who flatter and feast them and are their peers and colleagues and friends -- as our elite vanguard. They know best, and when they break the law, it is for our own good. "Laws" are for the masses, to keep social order, to ensure that the Rockefellers and Hiatts can rule in peace and telecom executives can develop their extremely profitable relationships with government agencies without being bothered by "unfair" disruptions, such as court proceedings when they break the law.
"Punishment" for lawbreaking is not for them. Rockefeller -- with his wise and genetically implanted noblesse oblige -- has looked at everything in Secret and knows that there was nothing wrong here. And that's all we need to know. We should place faith in his Judgment that there need be no further examination of what his telecom contributors did. No court proceedings or judges need look at any of this because Jay Rockefeller has adjudged, in secret with Dick Cheney, that telecoms should be protected. Just marvel at these self-loving, patronizing assurances:
Over the past year, the Senate intelligence committee has examined this issue, along with the need to bring the warrantless surveillance program within the law. We closely studied the facts, the documents and the alternatives to liability for the companies. Ultimately, we concluded that if we subject companies to lawsuits when doing so is patently unfair, we will forfeit industry as a crucial tool in our national defense. . . .
Unfortunately, immunity for communications companies has become a cause celebre for opponents of the surveillance program as a whole, and that has led to widespread confusion.
The growing anger over efforts to protect lawbreaking telecoms is nothing more than a "cause celebre." We're just "confused," misdirecting our unbridled, unsophisticated rage to the poor, innocent telecoms. It is up to the Serious Rulers -- Rockefeller and Hiatt and Cheney and Jamie Gorelick -- to protect these executives from the wild masses who are starting to become restless with their childish, confused ideas about how telecoms shouldn't be given license to break what we used to call "the law."
Rockefeller ends his Op-Ed how he began: with condescending deceit. "Lawsuits against the government can go forward," he says, showing how tough he is by declaring: "we rejected the White House's year-long push for blanket immunity covering government officials."
But Rockefeller knows this is untrue. Lawsuits against the government almost certainly cannot proceed. The Bush administration continuously invokes the "state secrets" privilege to compel courts to dismiss any such suits brought against the Government. Worse, because no individual citizens can prove that they were subjected to this illegal surveillance -- because Rockefeller and his friends in the administraiton have ensured that it all has stayed completely secret -- no plaintiff, as the Sixth Circuit has ruled, has "standing" to proceed in NSA lawsuits against the Government.
Thus, amnesty for lawbreaking telecoms would not mean that "we hold government officials accountable for mistakes or wrongdoing." It would mean the opposite. The Cheney-Rockefeller amnesty would strangle to death the sole remaining mechanism for obtaining a judicial ruling as to whether Bush broke the law with his various illegal NSA spying programs. It would be the final nail in the coffin in the attempt to ensure accountability for this lawbreaking.
And Rockefeller knows that, despite his patronizing claims to the contrary. After all, if he were serious about ensuring that Bush officials face consequences for their illegal spying, his bill would include mechanisms to ensure that they cannot invoke legal tactics (states secrets and "standing") to prevent courts from ruling on what they did.
Revealingly, his bill contains no such provisions. Thus, it would simultaneously protect telecoms from being held accountable in courts while allowing Bush officials to continue to shield themselves from legal accountability. It is nothing more noble than an enabling act for government and corporate lawlessness.
Finally, Rockefeller closes with the only other tool in the Bush arsenal: fear-mongering to "justify" lawbreaking. If we do not give amnesty to telecoms, he warns in his most ominous tone, "our intelligence collection could come to a screeching halt" and "the impact would be devastating to the intelligence community, the Justice Department and military officials who are hunting down our enemies." In other words, he tells us -- in his best Cheney impression --unless we give amnesty to his telecom contributors, Al Qaeda will kill us all. That is what his Op-Ed repeatedly asserts.
Again, this argument is so misleading as to be insulting. FISA and other laws already contain amnesty if telecoms can show they acted in good faith. When telecoms comply with the law, they don't get sued. They get sued only when they violate their legal duties to their customers and the country by engaging in exactly the behavior which the American people, through their Congress, decided to prohibit in the form of our "laws."
We want "private industry" -- and government officials -- to be incentivized to abide by our laws, not to break them. That's just so basic. Telecoms will continue to have enormous incentive to cooperate with legal surveillance requests: namely, they earn enormous profits when they receive government contracts for such surveillance. Problems arise only when they break the law, and that's how things work -- or at least are supposed to work -- in a country that lives under "the rule of law."
Rockefeller's bill rewards deliberate lawbreaking. His amnesty gift further bolsters the image he and Fred Hiatt and friends have of America whereby our most powerful Beltway officials and our most lobbyist-protected corporations can break laws with total impunity. No matter how many times Rockefeller and Cheney scream "9/11" and "Terrorists!," the most basic principles of "the rule of law" demand that telecoms and Bush officials -- like everyone else -- be held accountable when they break the law.
UPDATE: Relating to the Sen. Rockefeller's misleading assurance that lawsuits should proceed against Bush officials rather than telecoms -- even though he knows there are barriers to that which he is doing nothing to overcome -- Marty Lederman wrote:
[I]f Congress does grant the telecoms immunity, it must also, at the very least, take steps to ensure that the lawsuits against the government can proceed. Senator Rockefeller therefore should insist that his bill incorporate Senator Schumer's bill that would establish an express statutory cause of action to challenge the NSA program, and should also insist on a statutory amendment limiting the scope of any "state secrets" privilege to allow courts to adjudicate the legality of the NSA program without publicly revealing technological capabilities that must remain public.
But Dick Cheney didn't allow Rockefeller to do that, so he doesn't, thus demonstrating that the real effect of Rockefeller's amnesty is that all investigations into NSA warrantless eavesdropping -- against both telecoms and Bush officials -- will be foreclosed.
Meanwhile, Anonymous Liberal notes another gaping flaw in Rockefeller's Op-Ed: specifically his fear-mongering warnings that telecoms won't cooperate with surveillance requests in the absence of amnesty. A.L writes:
It's not as if the telecom companies can refuse to comply with a court order, so there's zero risk of non-compliance in cases where the FISA court is involved. And in cases where only a government directive is required, the current law allows the executive branch to seek an immediate ex parte order from the FISA court if a company refuses to comply with the directive. So it's not as if the companies can just ignore valid government requests for information and assistance. And they won't.
Precisely. If the Government wants telecoms to cooperate, they simply serve warrants -- just like the "law" requires -- and telecoms are then required to cooperate. Rockefeller's claims that surveillance efforts will "come to a screeching halt" without his amnesty plan is nothing more than the sort of deceitful fear-mongering which the Bush administration has relentlessly churned out over the last six years.