Telecom Immunity: Covering Up Illegality by Secrecy and Fear

Dick Cheney was at his best shilling for immunity for telecom companies today before the Heritage Foundation. His speech came one day before the Republican rubber stamp machine in the Senate attempts another push to give blanket immunity to the telecommunication companies suspected of engaging in illegal eavesdropping and surveillance of Americans. Although wiretapping is usually justified as a necessary tool in the "War on Terror", there is good reason to doubt the official story and question the legality of the Bush administration's practices.

Already a series of Bush administration lies on the subject has collapsed. First, there was President Bush's repeated public statements back in 2004 that wiretapping occurs in the United States only pursuant to court order. NY Times writers who had found out otherwise were threatened and cajoled into silence for an entire year. When the government's massive warrantless surveillance program was finally exposed in 2005, we were told the "terrorist surveillance program" had been instituted in response to the 9-11 attacks and the threat of terrorism. But a number of credible sources have since reported that the NSA's domestic phone record program began 7 months before 9/11.

The Administration argues that the telecom companies deserve immunity because their managers were loyal Americans acting in the public interest and they could not have been expected to determine the legality of their actions. Hefty financial incentives in the form of government contracts may have been dangled in front of the telecoms to get them to overlook the legalities. This argument fails, nonetheless, because of evidence in the form of heavily redacted court documents describing Qwest CEO Joseph Nacchio's refusal in February 2001 to turn over call records to the NSA without a proper legal order. (Nacchio contends that he was targeted by the Administration for a criminal investigation precisely because he refused to play ball without a court order.)

Obtaining the truth about the NSA's surveillance program is of the utmost importance. Congress is in the process of fashioning a legislative fix that is supposed to accomplish the dual goals of detecting terrorists without unduly invading privacy interests and without clogging up the NSA's databases with non-relevant data about innocent Americans.

Without the facts about the scope of monitoring, what actual prior limitations or technological challenges existed and exactly what kinds of surveillance services or customer records the telecoms were providing the NSA, it's hard to know what, if any, legislative remedy is needed to the Foreign Intelligence Surveillance Act (FISA). It is quite obvious, however, from various congresspersons' public statements after the midnight vote in August 2007 (before their summer recess) that few understood what they had voted for. So there's strong reason to believe that Congress itself has still not been told the truth. What Congress and the public have been told is that dramatic changes to FISA are necessary to expand warrantless monitoring of all international calls including of Americans' calls abroad.

Immunizing the telecoms' prior illegal actions in a blanket way not only sets a terrible precedent that the Constitution and the courts don't matter on the mere say-so of the executive branch, but the continued murkiness potentially covers up all kinds of other problems. Remember the FBI's rush to collect banking, credit, telephone, travel and all manner of other information about you with their hundreds of thousands of "national security letters" after 9-11? More is not necessarily better if mistakes and non-relevance are pervasive in such collection, as the Department of Justice's own Inspector General later found.

There are similar utilitarian concerns with the NSA's massive data collection and data-sorting system as those regarding the effectiveness of "no fly lists" that have quickly grown to contain tens of thousands of ordinary persons' names like "Gary Smith". Sources have reported the NSA's surveillance system, enabled by secret contracts between private telecommunication companies and the government, collecting various communications of Americans without individualized probable cause, has already produced a database clogged with corrupted and useless information. The same sources say that privacy protection would have helped inject some judiciousness into analysis and investigations to better separate the innocent from the guilty.

Moreover, there is reportedly no way to even monitor for abuses under the current system. While privacy regulations normally protect all sensitive information about American citizens, such as an IRS return or an FBI file, the program that Bush seeks to immunize apparently provides no way to track abuse by someone in the NSA or Executive Branch. This concern is no small matter considering the history of a rogue FBI agent like Russian spy Robert Hanssen or a criminal staffer like Scooter Libby.

The last time the country was scared into such civil rights abuses, in the 1960s, a high level FBI official ended up testifying to the Church Committee that no one in the FBI had questioned if the COINTELPRO domestic surveillance program was legal, moral or ethical. Fear has a history of inducing such mistakes. The Church Committee eventually unraveled many of the abuses of that era in an open process that stands as a model in ferreting out truth and fixing the problems. That's how we got the FISA law to begin with--it was a compromise to enable monitoring in individual cases for purposes of national security while simultaneously preventing abuse of Americans' privacy rights.

It appears the Bush Administration's push to provide blanket immunity for telecoms is on a par with the C.I.A.'s destruction of videotaped harsh interrogations in the midst of ongoing legal inquiries, the millions of White House e-mail records missing in violation of the Presidential Records Act and Bush's commutation of Scooter Libby's prison sentence. In the Bush administration, protection of the guilty from accountability under the Constitution requires suppressing the truth. But if Congress allows it to happen, the suppression of the truth will come at a high cost to the integrity of the Constitution, to Americans' civil liberties and potentially also to the national security of the United States.

Co-authored by Tom Maertens, former Deputy Coordinator for Counter-terrorism, Department of State and National Security Council Director for Non-Proliferation.

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