The WSJ editorial page lies about our surveillance laws

As is true for most advocates of telecom amnesty, the WSJ editors conceal the fact that telecoms broke numerous federal laws for years.

By Glenn Greenwald
Published February 11, 2008 1:50PM (EST)

(Updated below - Update II - Update III - Update IV)

There are very few opinion venues -- if there are any -- more brazenly fact-free than the Editorial Page of the Wall St. Journal. They have an Editorial this morning warning of all the grave dangers posed by efforts from the "anti-antiterror left" to limit the Leader's warrantless eavesdropping powers -- the most dangerous of which, they warn, is the campaign "to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11." The Editorial is filled with one demonstrable factual falsehood after the next.

Just marvel at this paragraph, incoherent and false in equal parts:

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor.

The assertion that Congress has failed "to ban such wiretaps directly" is an absolute lie and there is no other way to phrase that. The reason there are lawsuits brought against telecoms isn't because of some cliched liberal-judicial-activist effort to impose on telecoms obligations which don't exist in law. The opposite is true: the lawsuits were brought precisely because telecoms violated multiple clear, long-standing laws that make it illegal to do exactly what they did: namely, allow government spying on Americans and access to their customer data without judicial warrants.

Section 222 of the Communications Act of 1934 provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." 18 U.S.C. 2511 makes warrantless eavesdropping a felony; 18 U.S.C. 2702 requires that any "entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication" without a court order; 47 U.S.C. 605 states that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception"; and 18 U.S.C. 2520 provides for civil damages for any violations.

Like all statutes, those are all laws democratically enacted by the American people through their Congress and signed into law by the President. They were enacted precisely in order to make it illegal for telecoms to allow government spying on our calls and written communications without court orders -- precisely because Americans discovered that telecoms had previously allowed unfettered government spying on our communications and wanted to make it illegal for them to do so ever again. Those are exactly the laws the telecoms broke, in exactly the way that the American people wanted to prohibit.

To claim, as the WSJ does today, that "the left" is using lawsuits as a "backdoor" because it "failed to get Congress to ban such wiretaps directly" literally could not be more false and misleading. And, as always, the falsehoods are bolstered by Bush-following lawyers who are single-mindedly devoted to the authoritarian goal of increasing unchecked government power, such as former federal prosecutor Andy McCarthy, who hails the WSJ Editorial as "superb" despite what he must know are its undebatable falsehoods about the law.

There is an honest way to argue in favor of telecom amnesty, and it is, of course, exactly what amnesty advocates like the WSJ, Andy McCarthy, Jay Rockefeller and the rest of them desperately avoid. This is the only honest case one can make for this radical gift to telecoms:

Yes, telecoms violated multiple federal laws by enabling government spying on Americans and turning over communications data without warrants. They broke these laws not only in the aftermath of 9/11, but for years and years. By breaking these laws, they reaped enormous financial profits, as the Government paid them huge fees for their cooperation in the illegal spying program. Despite their having broken multiple federal laws and having committed felonies -- while reaping great profits in the process -- they ought to be granted retroactive amnesty and immunized from any consequences for their lawbreaking, otherwise they may be reluctant to break our laws in the future.

The telecom amnesty debate is controversial but it is not complicated. The Government asked telecoms to break numerous federal laws in exchange for profit. Some telecoms refused to do so and others -- such as AT&T and Verizon -- agreed to break the law for years. Which behavior do we want to encourage and reward -- (a) telecoms which turned down the substantial government contracts to enable warrantless spying on Americans because doing so was illegal, or (b) the telecoms which purposely broke our laws by allowing illegal government spying on Americans? How can that even be a debatable question?

As the Senate votes on amnesty tomorrow, the only real question is whether telecoms which broke our laws should be accountable in a court of law for their illegal behavior (the way things are supposed to work in a country that lives under the rule of law) or whether Congress, lavishly funded by this industry, will pass a law that has no purpose other than to give them the retroactive license to break our country's laws with impunity.

The shamelessly fear-mongering claim that telecoms won't "cooperate" in the future without amnesty -- a central prong of the WSJ's Editorial, needless to say -- is nothing more than the standard authoritarian tactic of warning that unless we succumb to Bush's demands and give the Government and its allies everything they want, we're all going to die at the hands of the Terrorists. Telecoms were already granted prospective immunity by the Protect America Act -- meaning they cannot be held liable in the future if they act pursuant to government certification that the requests are legal. That already ensures all the "cooperation" that we could possibly want.

Moreover, we want telecoms and all other private actors to be incentivized to abide by the law, not to break the law. That's why we enact laws in the first place, along with penalties for breaking them -- because we want an incentive scheme that causes companies to refuse illegal requests from the government. The full-scale immunity that Congress is about to bestow rewards lawbreaking and incentivizes rational telecoms to ignore our laws in the future, knowing that they are free to act illegally without consequence. What rational person would want to endorse that framework?

The persuasiveness of an argument can often be determined by the willingness of its advocates to confine themselves to the truth when making it. That telecom amnesty advocates resort to demonstrable falsehoods -- literally pretending that telecoms did not violate multiple laws when allowing warrantless spying -- is a powerful testament not only to their lack of integrity but also to the deceit and corruption that forms the crux of their efforts.

Whatever else is true about these telecoms that are about to be granted this extraordinary gift from Congress -- no matter how many times they are lavished with the creepy Orwellian phrase "patriotic corporate citizens" -- it is undeniable that they are deliberate lawbreakers. That's why they need amnesty in the first place. Any amnesty advocate who denies that central fact is arguing from a position of deep dishonesty. Bestowing retroactive telecom amnesty is nothing more than the latest step in creating a two-class legal system in America, where most citizens suffer grave penalties if they break the law, while our most politically powerful and well-connected actors are free to do so with impunity.

UPDATE: The probability is virtually zero that the Democratic-led Senate will do anything here other than what they always do: namely, ensure that enough Democratic Senators join with the unanimous GOP caucus to endorse whatever demands the Bush administration makes of them. They are more or less certain to enact a warrantless eavesdropping and telecom amnesty bill tomorrow that is virtually identical to the bill to which Dick Cheney gave his approval when working with Jay Rockefeller. Thank God the Democrats won control of the Senate in 2006; otherwise, think of how different everything would be.

There is some small chance that the House will impede -- if not stop -- at least some of the more extreme Cheney/Rockefeller provisions. As The Nation's Ari Melber reports: "A trio of Democratic House Committee Chairmen [Dingell, Markey and Stupak] are stepping up the fight against President Bush's surveillance bill this week, vowing to beat back a controversial proposal to grant retroactive amnesty to companies accused of illegally spying on Americans . . . circulating a letter urging their colleagues to stand firm and keep amnesty out of the final spying bill."

Unfortunately, the House "Blue Dogs" are basically the House version of Jay Rockefeller and Harry Reid and can, and likely will, single-handedly ensure that the House joins the Senate in complying in full with Bush's demands. But as long as the prospect remains that it can be stopped in the House -- and "an ACLU spokesperson told The Nation that the action by House leaders is the only 'ray of hope' to scuttle amnesty" -- it is worth trying. We'll have a petition and various action steps posted tomorrow once the Senate votes in favor of warrantless eavesdropping and telecom amnesty.

UPDATE II: One common tactic on the authoritarian Right is to promulgate a simplistic lie about a complex issue and simply repeat it over and over no matter how many times it's disproven, without ever addressing the response. Thus, this is what the WSJ claims the "debate" is about (h/t Jestaplero):

The debate concerns an effort to revise the 1978 Foreign Intelligence Surveillance Act (FISA) to bless spying without a court order on terrorist communications that originate overseas but move through U.S. switching networks. We believe -- and appellate courts have stated -- that the President already has such authority under the Constitution. But the political left claims this is "illegal" under FISA, and Mr. Bush has agreed to work with Congress on a compromise.

That is as much of a lie as the WSJ's assertion about the state of surveillance law. There is absolutely no "debate" of any kind -- nor has there ever been -- over whether FISA should require warrants for the types of calls the WSJ describes here. Everyone, even including the most stalwart opponents of the bill, such as Sen. Russ Feingold and Rep. Rush Holt, agrees that FISA should be amended to exempt from its warrant requirements foreign-to-foreign calls routed through the U.S. There is no "debate" about that provision and the WSJ's claim that this is what is being debated -- and that the "Left" believes that such eavesdropping is illegal -- is just false.

The bill that the White House demanded and that Jay Rockefeller sponsored allows for warrantless eavsdropping not only on foreign-to-foreign calls, but also on international calls which American citizens make and receive while on U.S. soil. Put simply, it allows the President to spy on all of our international calls and emails with no oversight and no warrants of any kind. That is what the "debate" is about.

What the Senate is about to do tomorrow is very simple: it will (a) vest vast new powers in the President to spy on the calls and emails of American citizens, inside the U.S., with no warrants, and (b) grant amnesty to telecoms that broke multiple federal laws. In sum, it will legalize the "Terrorist Surveillance Program" that the President ordered for years in violation of the law -- a program aimed at eavesdropping on U.S. citizens, inside the U.S. The fact that proponents of the bill, such as the WSJ, have to lie about what the bill does -- and that is what they are plainly doing in claiming the "debate" is about foreign-to-foreign calls -- is rather compelling proof of how pernicious it is.

UPDATE III: There is some (understandable) confusion around about what is going to happen tomorrow with the FISA vote and Dodd's promised filibuster, as exemplified by this Kos diary touting an email from Sen. Leahy in which Leahy announces that he "will do everything in [his] power -- including joining [his] colleague Chris Dodd in a filibuster against this legislation -- to fix it." I shared this confusion until earlier today when these matters were clarified.

Contrary to the emphatic promise Dodd repeatedly made during his presidential campaign to lead a filibuster on the floor of the Senate to stop any bill that has telecom immunity in it (a promise which, incidentally, led to hundreds of thousands of dollars being donated to his campaign), there isn't going to be any actual filibuster tomorrow. Under the Unanimous Consent framework agreed to by all Senators (including Dodd), there will be a 60-vote requirement to invoke cloture on the FISA bill and for ultimate passage, followed by an allotted 4 hours of post-cloture "debate," but there will not be any real filibuster to prevent cloture. When Leahy says that he will "join" Dodd's filibuster, what he means is that he will merely cast a vote against cloture.

Dodd's efforts against this bill have been quite commendable, and the UC Agreement isn't completely worthless. It means that Democrats do not need 60 votes, or even 50 votes, to stop this bill. Rather, they only need 41 Senators willing to oppose cloture (which everyone knows they're not going to get).

Still, Dodd is not, after all, going to lead an actual filibuster on the floor of the Senate to stop the bill. Worse, the Republicans are going to be permitted to impose 60-vote requirements on key Democratic amendments without actually having to filibuster at all -- exactly the situation which Harry Reid vowed just two weeks ago he would not permit.

UPDATE IV: Russ Feingold, on the Senate floor today, arguing against telecom amnesty and making some basic points, ones distorted deliberately by the WSJ Editors:

Feingold added:

The abuses that took place [prior to FISA] are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives, and even Martin Luther King Jr., an American hero whose life we recently celebrated.

Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

As Feingold explained, FISA was written with the cooperation of AT&T to ensure they had the clarity they needed -- if they received written certification of legality from the AG, then they were required to cooperate with surveillance requests, but if they did not receive such certification, then the requests were by definition illegal and they were prohibited from doing so. The law already provides all the protections telecoms need and wanted for legal surveillance on Americans. This was the law they deliberately broke when they allowed the Bush administration to spy on Americans without warrants.

Glenn Greenwald

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