Mr. Ashcroft Offers An Opinion (updated)

Uncle Sam on the Line — more sophistries, ultimately hinging, of course, on 9/11

At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not “blanket immunity,” as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

[…] Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Yet if we allow the litigation to continue, that is precisely what we will do. The message that will be sent to American companies is that they can be exposed to crippling lawsuits for helping the government with national security activities that they are explicitly assured are legal. The only rational response would be for companies to adopt an attitude of extreme wariness, even in the most urgent or clear-cut situations. To put the matter plainly, this puts American lives at risk.

If I had any confidence that my government would actually ‘fess up to their own wrongdoings in this matter, I would be willing to listen to a debate over his construction of this situation. BUT, I have no confidence of that and, without the opportunities for discovery that these lawsuits afford us, I am afraid that the scope and extent of this Government’s misapplication and misappropriation of power will be made harder and harder to find.

And, frankly, I think that it’s time that the corporations that have benefitted from getting us to rely on them to take care of us start planning to question our Government when it shows up with assurances of “legality.” Assuming that the Government is the law is like assuming that the police are the law — we know that’s problematic on a host of levels, and maybe it’s time to get firms that act as agents of the Government to remember that they are no more above the law than anyone else, and start adopting practices accordingly.

Because otherwise you can expect to see demand for encryption tools that will take the issue to a whole new level, since we will have to assume that our service providers are spying on us all the time — which may not be a bad assumption for a closed society, but one that will be particularly destructive for an open one.

And I really don’t think Mr. Ashcroft should have tried this point:

Members of both political parties in both houses of Congress have already been briefed extensively about the activities underlying the current lawsuits. Obviously, not all 535 members of Congress can have equal access to such sensitive information; the risk that the information will be compromised is simply too high. But the intelligence committees are recognized authorities on these issues and proper repositories of these secrets.

The Senate Intelligence Committee has voted 13-2 to grant immunity to telecommunication carriers that have been sued for helping the country after 9/11. Unlike most everyone else, this committee had the necessary and relevant facts when it rendered judgment. […]

All that says to me is that it’s time to get rid of those folks on the Intelligence Committees

Later: then there’s this nugget — NSA Sought Data Before 9/11pdf

Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government’s top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.

Update: the letters in response (including one from Sen Russ Feingold) are not letting him get away with his game — Wiretapping and the Telecomspdf

To the Editor

Re “Uncle Sam on the Line” (Op-Ed, Nov. 5): Former Attorney General John Ashcroft leaves out a crucial point when he argues that telecommunications companies that allegedly cooperated with the administration’s warrantless wiretapping program should be shielded from lawsuits.

Telecom companies that cooperate with a government wiretap request are already immune from lawsuits, as long as they get a court order or a certification from the attorney general that the wiretap follows all applicable statutes.

This immunity provision in current law protects companies that respond to legitimate government requests for assistance. It also protects innocent Americans who expect that their communications will remain private unless the government and the companies are acting lawfully.

If companies that allegedly cooperated with the warrantless wiretapping program didn’t follow the law during the five years that the program was in existence, they should be held accountable. And courts should be allowed to rule on the legality of this program.

If we want companies and the government to follow the law in the future, retroactive immunity sets a terrible precedent.

Russ Feingold
U.S. Senator from Wisconsin
Washington, Nov. 6, 2007