Telco Immunity Deal Coming?
That’s what Jane Hamsher thinks.
According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.
If she’s right, it’s about time.
Americans’ privacy has been invaded in deep and profound ways during the Bush administration. Is there anyone who truly believes otherwise? But the right approach to rectifying the problem isn’t to go after the companies that cooperated, willingly or otherwise, with the Feds. It’s to go after the officials who gave the orders.
So far there’s been no willingness whatever on the part of Democrats to do that and I don’t fully understand why. Best guesses: Either they realize that doing so would be futile or they recognize that the administration did what it had to do during a security crisis. Neither is a reason to target telecom companies.
Jane’s reminder to us of the power that a modern government spying apparatus can wield is interesting, in places, and worth taking to heart as technology continues to grow more powerful:
Unfettered access to the carrier’s systems offers powerful information. All calls and data communications including e-mail, Web, text messages, pictures and videos are attainable in real-time.
…
Our government tracks all Internet use with powerful tools that analyze and prepare behavior-based reports. Any single piece of information can be effortlessly cross-referenced to build an electronic dragnet constantly monitoring our actions and even predicting our behavior.
Information overload and processing power, once the sole barrier to these tactics, are no longer a factor. Given precipitous developments in technology, inaction today would surely have an exponentially greater impact on the rights and lives of future American generations — where an Orwellian nightmare would become reality.
But taking a little to far, Pasdar comes off a bit paranoid.
Ubiquitous Radio Frequency Identification (RFID) tags are permanently hidden in almost everything including clothes, packaged goods, credit cards and toll payment devices. As small as a grain of sand, they offer not just tracking but also detailed information on anyone or any item.
Scare tactics, none of which have much to do with the question at hand. That is, should communications companies be prosecuted for cooperating with the government during a crisis, particularly for performing actions that have now been deemed acceptable?
There is neither a legal justification nor a moral justification for attempts to insulate the telecommunication providers, that assisted with the illegal Terrorist Surveillance Program, from any damage that would ensue if it is ultimately determined in Federal Court that these telecommunication providers did not receive adequate legal authorization from the Bush Administration before these telecommunication providers released access of customer’s electronic communications and other information to the Federal government. Director of National Intelligence Mike McConnell laments that "those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits", but the myth of telecommunication providers as victims in this soap opera is a falsehood wrapped in sentimental twaddle, and this is evident to anyone who thinks for a moment about the vast array of legal resources employed by corporations when they are litigating against Federal and State agencies or when they are lobbying Congress to reduce taxes and eliminate regulations. The teary-eyed homily about the telecommunication providers merely doing their patriotic duty lost some of its emotional appeal when it was revealed in January 2008 that one of these telecommunication providers temporarily pulled the plug on surveillance due to a delay in payment by the government.
In the case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER (1952), one of the primary reasons that the Supreme Court ruled that President Truman did not have the authority to seize production of steel, to pre-empt an imminent strike during the Korean War, was that Congress had provided the President, through legislation known as the Taft-Hartley Act, with another (although more cumbersome) method of achieving his objective. In a concurring opinion in the case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER, Justice Robert Jackson outlined a frame of reference that has often been quoted as a reasonable test for evaluating the limits of the President’s power with respect to Congress:
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
If the telecommunication providers that assisted with the Terrorist Surveillance Program instead had refused to co-operate because the requests from the Government were not accompanied by FISA warrants, and if the President had seized operation of these telecommunication providers because litigation would have been too cumbersome in relation to the surveillance needs, the President soon would have found himself being slapped upside the head in Federal Court by these telecommunication providers.
Official and unofficial spokespersons for the Bush Administration have issued dire warnings that the telecommunication providers that assisted with the Terrorist Surveillance Program will not be willing to co-operate with legal electronic surveillance if these telecommunication providers are not granted immunity from approximately 40 lawsuits that have been filed against them. To help simplify the simple-minded argument advanced by defenders of the Terrorist Surveillance Program, we (through our elected representatives in Congress) are being requested to grant retroactive legal and financial immunity to the telecommunication providers for illegal activity in which they may have engaged by assisting with the Terrorist Surveillance Program, and in return these telecommunication providers will agree to honor legal court-ordered warrants. But, heaven forfend, if retroactive legal immunity is not granted for illegal activity in which the telecommunication providers may have engaged by assisting with the Terrorist Surveillance Program, there is a veiled threat that these telecommunication providers will engage in additional illegal activity by refusing to honor legal court-ordered warrants. Now that certainly sounds reasonable. But seriously folks, the Bush Administration is primarily concerned with preventing the public and potential plaintiffs from discovering the extent of the illegal activity in which Bush Administration officials were engaged, and this yeoman effort to provide immunity for the telecommunication providers that assisted with the Terrorist Surveillance Program is just the Bush Administration’s method of enlisting Congress in the obstruction of justice.