Telecom Spying– You Are Still Not Safe

You’re still not safe because there’s still no terrorism exception to the rule of law. That was the message from the Attorney General this week in his address to the Commonwealth Club of California. After his initial remarks (which were on the ongoing effort to fight public corruption) he solicited a question on the debate over retroactive immunity for the telcoms violations of the statutes protecting the privacy of their customers at the behest of the President.

I don’t write this because I expect to change anyone’s mind, this isn’t that kind of issue. I am writing this because I am tired of being talked down to by people who exude a sense of entitlement to conduct themselves as they see fit, the rule of law notwithstanding. We may see legal protection for the telcoms fairly soon – Congress will reconvene on April 14th – but it will be all the more tragic because we won’t be able to hide behind a claim of ignorance like we did with the Patriot Act.

The Attorney General began by explaining, from his perspective, why the telcoms are being sued:

“[The telcoms] are being sued … because they are believed to have responded to the direct assurance by those in authority that the President had asked them to help collect foreign intelligence against foreign targets – we’re not talking about domestic surveilliance … of targets located abroad, and that it was legal”

Wrong. The telcoms are being sued because they broke the law. This is one of the most offensive aspects of the rhetoric being used. What the Attorney General is trying to describe is a legal justification for what the telcoms did. If he is right, there is a good chance that they in fact did not break the law. Fantastic right? So why do we need to immunize them, just let them win in open court. In fact, if the claims are half as frivolous as the Attorney General suggests, the plaintiffs would have been thrown out a long time ago. Later on, he comes back to this, saying “we need and get court permission … to [conduct surveillance on Americans here in the United States],” again saying this is about foreign intelligence and foreign targets. Whatever planet the Attorney General is living on, the lawsuits here in the United States are brought by Americans who claim that THEIR rights have been violated.

Which brings me to the second way this characterization is wrong. The plaintiffs are not suing because the telcoms violated the rights of “foreign targets.” That would be absurd, and a losing legal claim to boot. They are asserting that the rights of American citizens have been violated. There isn’t a shred of doubt that the Attorney General understands this, which is what makes his comments so shameful.

The Attorney General goes on to name two problems with permitting such lawsuits, starting with “the problem of fairness.” He argues that it isn’t fair to ask anyone to assist the government in any way, such as asking a storekeeper to permit a policeman to enter his store and surveil the suspect on the sidewalk … well he trails off at that point, and never says what about “ask[ing] somebody to cooperate with the government” that is unfair, but I take it that what he meant was that it is unfair to “ask somebody to cooperate with the government [and then turn around and sue them,]” which is, of course correct. It is unfair for the government to ask a private company to help it break the law, but I am shocked at the suggestion that retroactively nullifying a law designed to prevent precisely what happened here in some way makes the government’s request more FAIR. True, the President asked the telcoms to break the law, but the Congress told them, long before that ever happened, what the consequences would be if they did so. In short, whatever the President asked them to do, the FAIR thing would have been for the telcoms to follow what the American People told them was legal.

Secondly, the Attorney General continues,

“these are private companies, they are not charitable institutions, they are not government institutions. Their business – and it is a business – involves an obligation to protect their shareholders… [I]t is to be expected that when they are put in a place of uncertainty about whether their cooperation is going to precipitate a lawsuit for not millions but billions of dollars, that their response is going to be to push back. ‘We’re not going to voluntarily do it, make us do it – go to court, get an order.’ If we do that, we have to put in a mountain of paper … and get an order. That takes time, and in that time, we lose intelligence.”

Now, in case you are just as stupid as the Attorney General would like to treat you, he is talking about institutional incentives. I wonder how Congress could possibly have forgotten that penalties for illegal wiretapping would coerce compliance.

As to the loss of intelligence, I don’t want to suggest that the Attorney General is lying, so I will, rather, suggest that he is foisting responsibility onto the law for the failure of this administration to carry out its duty. He describes a time where intelligence was lost. The fact is, if they wanted to wiretap someone without a warrant they could do it, all they would have to do is get a warrant LATER. That’s right, they could go about merrily wiretapping whoever they like, and then they had time to get a warrant retroactively. Notice, he doesn’t suggest the time period was too short (a reasonable argument), or that they couldn’t get one if they tried, he suggests that there was too much paperwork.

Voluminous paperwork has never before constituted a good reason to break the law. The Attorney General (seriously, take that in, this isn’t some OLC staffer, this is the Attorney General) is arguing right here that we should sanction the violation of the law because the paperwork was too onerous. The arrogance takes my breath away.

Of course, “this is a war unlike any other that we have ever been involved in…. These people don’t follow the rules of war, indeed they take pride in not following them… The only weapon that we have to protect ourselves is … intelligence.” I can only think of one way that the lawlessness of our enemy justifies our own lawlessness in his pursuit, but the thought of the Attorney General endorsing the idea is so sickening that I won’t expand on it. This is an argument for legal surveillance, not an argument about why we should be ok with abject violations of laws designed to protect us.

In closing the Attorney General made the following statement:

“For all of those reasons, we have asked for, and think we can’t do without, and won’t do without, immunity.”

I don’t know what he thinks he means by “we won’t do without” immunity, but those are not words that I ever expected to hear from the Attorney General of the United States. We would do ourselves a lot of good, once in a very great while, to remember that the Attorney General, no less than the President himself works for we lowly and insignificant people. The Attorney General WILL “do without” whatever we tell him he will do without, and however much he might dislike privacy laws, or however much paperwork they require of his office, they are just as binding as any other law. We, collectively, may decide to immunize the phone companies but it will be an act of generosity, not to be confused with the sort of licensed lawlessness that festers these days among the highest ranks of those we hire to protect us.

(The audio is available here)

Published in: on April 4, 2008 at 11:48 pm Comments Off on Telecom Spying– You Are Still Not Safe

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