Almost seven years after the September 11, 2001 attacks, mainstream media and Congressional Democrats are finally beginning to defy President Bush's illegal and unconstitutional program of spying on Americans.
During an astounding press conference on February 28, 2008, President Bush was jarred by the veteran and habitually-reserved CBS correspondent, Bill Plante, who asked point blank: "I know it's unintended to spy on Americans, but in the collection process information about everybody gets swept up and then it gets sorted. So if Americans don't have any recourse, are you just telling them when it comes to their privacy to suck it up?"
Stunned by the question, Bush delivered a condescending non-sequiter: "I wouldn't put it that way, if I were you - in public. You've been around long enough." (The President never disputed Plante's premise that everyone's information is vacuumed up by the government.)
Visibly angry, the President blamed everything on his favorite target - trial lawyers: "You cannot expect phone companies to participate if they feel like they're going to be sued... class-action plaintiffs attorneys, you know - I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train - are trying to sue these companies. It's unfair. It is patently unfair."
Always willing to go to the mat to defend helpless phone giants, President Bush neglected to mention that the original lawsuits were brought by public interest lawyers like us and the ACLU, not class-action lawyers. This is only one of a series of untruths told by the Bush Administration about the largest domestic spying program in American history. Not least, as reported in this paper in January, the Bush administration took steps to monitor the calls of American citizens before 9/11, not after, as the administration has repeatedly asserted.
The President's suggestion that it would be "patently unfair" to hold the phone companies liable represents a new low in this administration's disregard of the law. Congress has long made it a crime for phone carriers to share a subscriber's phone records with the government without a warrant or subpoena. Both the Electronic Communications Privacy Act and the Stored Communications Act provide for a minimum of $1,000 in damages for each violation of a phone subscriber's privacy rights.
The Bush Administration never mentions that at least two phone companies refused to participate in the Administrations' illegal attempts to access citizen phone records without court order. Qwest, under former CEO Joe Nacchio, refused to cooperate with the NSA's spying program because the government would not certify that the program was legal. Michael Kieschnick, President of the Working Assets phone company, went further: "Working Assets believes that the warrantless monitoring of phone conversations ordered by the Bush administration is illegal and unacceptable... Working Assets would never, under any circumstances, give (let alone sell) records to the Bush administration without a warrant or court order."
The CEOs of the major phone companies - Verizon, ATT and Sprint - could have complied with the law, but chose not to. Now that they've been sued under laws Congress passed to protect their own subscribers, the companies expect a Congressional bailout that wipes away the privacy rights of nearly every American phone customer.
So far, Democratic leaders in the House have refused to join their Senate colleagues in pushing through the Protect America Act that would have expanded the administration's domestic spying program and given unprecedented immunity to telephone companies. Had Democrats succumbed to White House pressure, dozens of lawsuits would have been dismissed and, along with them, any legal remedy for the one of the most widespread violations of civil liberties by any U.S. administration.
This is one of the most important civil liberties issues of this generation and House Democrats must stand firm. The President sounds increasingly like the fictional, deluded Dr. Strangelove, only instead of bemoaning a "Doomsday Gap" he incoherently warns of an "Intelligence Gap." If ever there was an opening for Democrats to blockade an isolated and unpopular administration to protect a popular principle, this is it.
There are ways to safeguard national security and uphold the law. But intentionally rewarding illegal spying tramples upon due process and interferes with the independence of the federal courts. Such a drastic step is not needed to protect America from terrorist threats. Our greatest protection lies in a nation under the rule of law.
The government can assure the phone companies' cooperation in future investigations, by protecting them from future damage claims while leaving pending cases to be resolved in the courts.
Americans cherish their security, but time and again have shown that they value first and foremost their rights of privacy and free speech.
There is little merit in protecting the nation from lawless terrorism only to become a nation contemptuous of established law.
Bruce I. Afran and Carl J. Mayer are public interest attorneys. They brought the first lawsuit against Verizon for illegally turning over customer records to the government.
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