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

Comments

[Pete Ross]

Just one more little piece of democracy being denied by the Busheviks and their rubber stamp Congress!

Pelosi, Reid and Hoyer must go - they are complicit in the Bush cover-up which is enabling the diminishment of our democratic ideals and our democracy itself.

The telecoms must not be let off the hook if only to be able to use their testimony to find out the truth of what has been happening. The telecoms' capitulation to the illegal wiretapping is only the first insight into the nefarious contempt for law and the Constitution that the Bush Administration had and there will be much more exposed unless the telecoms are given immunity.

[HypocrisyAlarm]

Colleen, how can Congress, constitutionally speaking, pass retroactive immunity? Article 1, section 9 precludes ex post facto laws. Can the Congress use Smith v. Doe to justify the immunity? Or can they enact such a travesty because it would REDUCE a penalty and, thus, not concern the prohibition of ex post facto laws?

[BDLamb]

Thanks for highlighting this. If they are not doing anything illegal like they say, why do they need immunity anyway?

[oogabooga]

Why is Reid pushing this so hard? We know why Cheney and Bush are - money. But why Reid? What's in it for him? Money too? ATT execs forgot to read the Fourth Amendment before they caved to the fascist NSA. The Qwest dude did read it -and respect it. And he got punished for believing in our freedoms in the Constitution. Go figure. The money-grubbing fascists are in the wrong country. Bon voyage Cheney, Reid ad nauseum.

[randyw]

Seeing that we have not had another terror attack inside the United States since 2001 shows me that the system we've been using must be working , with that said ....if it ain't broke then it don't need fixing ! Uncle Sam dosen't need to spy on American citizens in order to keep us safe! Besides if we're fightin' them over there then we needent even worry about fightin' over here! And if that weren't enough Darth Cheney done told us WAAAY back when that the terrorists are in their final throes!

[Novista]

Full disclosure: I used to work for AT&T.

And I say, Hammer the bastids.

[drblack]

The Biggest threat to your Freedom and Prosperity is the US Government.
We are becoming more like the Soviet union everyday. We are becoming like Red Communist China.
The so called "Patriot" Act and so called "Protect America" Act have not made anyone safer but it has made everyone less FREE.
The Republicans, neoCONS and christian extremists have begun to move the USA towards a police state.
All Americans will be watched, you will be required to carry your papers(Real ID) and the Police will have almost absolute authority to do what ever they want.
If you are a frightened coward and want to give up your Freedom for a false security like the neoCON republicans have go live in China, or Iran...as an American i will fight to maintain Freedom with every bit of myself.

[Zaro]

I can't imagine that Cheney going all out to get the telecoms off the hook. Wouldn't telecom immunity also give Bush immunity? Wouldn't it say that Bush had the authority and the constitutional right for warrantless wiretapping? Wouldn't it retroactively make his actions legal? And as a bonus it would set precedent for the unitary presidency that Bushco was seeking for so long.

[ljsfolly]

Like the signing statements and all of the secrets and lies plus all the no bid contracts and money lost or given away with no records a little bit like letting the telcoms getting off free is just like scooter. Remember him and his assisting cheney in the outing of a undercover CIA agent putting her life and others in danger if someone were to have access to all that has gone on with this administration no one would believe it all happened and was not a script. We lived through it and still have no idea about what has really happened.

[realitytrumpsbull]

So, if you're the People's Republic Of Halli.....­.., it's OK to go around reading everyone ELSE's email, but you get to 'lose' yours...


http://www.impeachbush.org

If it walks like a police state, talks like a police state....

[urbanrevolt]

You'd think that having conversations with GOd and having the magic ability to look into people's hearts and souls, Bush would be able to get around all this mundane criminal behavior.

I think the notion of convincing the Presidential candidates to go do their current jobs is fantastic, but how many times have they even mentioned it?

[Chewelahboy]

While I find the Bush administration's efforts in this area onerous, and I also think it is right for our gutless Senators and Representatives to share in this dark day for America, I am equally concerned about our courts and our legislators failure for over a decade now to adequately protect the Privacy rights of American citizens. The facts are that we should be just as concerned about the massive and wholesale invasion of privacy by private corporations. Heck, we should be outraged about this.

Yes challenge all Presidential candidates to defend their actions and inactions in this regard, and extend that to all candidates for the house and the senate and for state legislatures.

[antirepublocrat]

Qwest was the only telecomm to resist. I was going to switch to Qwest but we still have one phone on our plan on contract with Alltel.

A nationwide campaign to switch to Qwest might send an interesting message.

[Coleen Rowley - Huffpost Blogger]

I just saw this great suggestion that John Edwards should challenge his rivals Barack Obama and Hillary Clinton to go back to Washington, DC and fight against retroactive immunity for the telecoms.

The Republicans are not going to let Harry Reid punt and extend the Protect America Act for another 18 months so it looks like the FISA bill is going to come back up again on Monday. Chris Dodd's objection to Unanimous Consent still stands, so they will pick up in the middle of the Motion to Proceed debate.

Without the help of the presidential candidates, we are doomed to lose this fight. And all the candidates' calls for change will ring hollow if they allow George Bush to railroad this bill through a supine Democratic­-controlle­d Senate because of their absence.

If ever there was a reason to believe that some part of the convoluted political process could actually really serve the purpose of our constitutional democracy, this is it! Please email Senator Edwards directly at johnedwards.coms.com.

[msfiskvletterman]

1/23/08
6:15pm
Library of Congress Reading Room

I cancelled my cell phone contract with T-Mobile in October 2007 and replaced it with Sprint.
30 days later I cancelled Sprint and now I have a pay-as-you-go phone.

Nothing but problems with these companies. I don't know if the calls were monitored or not but it appeared that way to me. If I am ever able to prove that my calls were monitored and my privacy invaded, then I should be able to sue them.