| Retroactive Immunity for Telecoms 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.
Some people have commented that the telecommunication providers that assisted with the Terrorist Surveillance Program may not have done anything illegal based on interpretation of Title 18 U.S.C. Sec. 2511(2)(a)(ii)(B), Title 50 U.S.C. Sec. 1802, or Title 18 U.S.C. Sec. 2702(b)(8) and Title 18 U.S.C. Sec. 2702(c)(4). Although the complete answer is not known for certain, testimony to the Senate Judiciary Committee on May 15, 2007 by former Deputy Attorney General James Comey, and testimony to the Senate Judiciary Committee on October 2, 2007 by former Assistant Attorney General (for the Office of Legal Counsel) Jack Goldsmith, indicates that the certifications by the Justice Department to the telecommunication providers did NOT meet the requirements outlined in Tile 18 U.S.C. Sec. 2511(2)(a)(ii)(B) or Title 50 U.S.C. Sec. 1802, at least for most of the period during which the Terrorist Surveillance Program was operative. The Bush Administration has promulgated some tortured legal rationales, but it is a legal maxim that words in a legal statute have their plain meaning unless the statute provides for an alternative meaning. The potentially applicable exceptions to prohibited disclosures in Title 18 U.S.C. Sec. 2702 are specifically for life-threatening emergencies, and it would be impossible to establish that the necessary emergency conditions existed for all of the communications that were intercepted by the intelligence agencies throughout the duration of the Terrorist Surveillance Program.
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. |
