11/05/2007 05:10 pm ET | Updated May 25, 2011

Uncle Sam on the Lam

In an op-ed in the New York Times on November 5, ("Uncle Sam on the Line"), former Attorney General John Ashcroft offers a seemingly reasonable case for Congress to grant immunity to the major telecommunications carriers accused of cooperating in allegedly unlawful government surveillance programs. In short, Ashcroft argues that the carriers should not be held liable for their actions insofar as they acted on the basis of "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful."

This sounds sensible. After all, the telecommunications companies were only doing what the government told them to do. What more could we or should we expect from them? It would be unfair and unwise -- perhaps even un-American -- to hold them accountable for cooperating with the government in a matter of national security -- even if the programs were in fact unlawful.

I have some questions for Mr. Ashcroft. First, what are the limits, if any, of his position? Suppose the government asked a private security firm to commit murder or torture or rape. Would they, too, be entitled to immunity because they acted on the basis of "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful"? Is there a difference in principle between these situations? Perhaps in Mr. Ashcroft's view unlawful surveillance is different because it's just not a sufficiently serious violation of individual freedom to expect private individuals and organizations to question the legality of the government's request. Perhaps Mr. Ashcroft would demand legislative immunity even in cases of murder, torture, and rape. I would like to know.

Second, what makes Mr. Ashcroft think that the government or the telecommunications companies could reasonably have believed in this situation that the government's surveillance program was lawful? As a matter of fact, the clear consensus among legal and constitutional experts is that Mr. Bush's surveillance program violated the 1978 Foreign Intelligence Surveillance Act, which expressly prohibited such conduct. Only a tiny slice of the legal profession believes that the Bush surveillance program was lawful, and almost all of them had been recruited into the Bush White House.

In plain truth, it is only the executive power fanatics like Vice President Cheney, David Addington (Cheney's counsel), and John Yoo (the author of the notorious torture memo) who actually believe that the president has the constitutional authority to disregard federal law whenever he thinks it would be useful to do so. This is an extreme, unprecedented, and irresponsible legal position. It is not "reasonable," and if the telecommunications companies consulted their lawyers, those lawyers should certainly have told them so. And if they are worth anything like what they are paid, they probably at least warned them that the program was, at best, of doubtful legality.

Moreover, even if the telecommunications companies were in doubt about the legality of the surveillance they were asked to carry out, what was the proper thing for them to do? Mr. Ashcroft seems to assume that patriotic Americans should give their government the benefit of the doubt and act compliantly. But it is not so simple. In a self-governing society that is premised on skepticism about the exercise of government authority, it is the responsibility of patriotic Americans not to blindly follow orders, but to question the legality of requests that seem on their face of doubtful legality. The real patriot does not dutifully murder, torture, rape, or spy merely because the government secretly whispers, "It's O.K. with us."

Third, Mr. Ashcroft complains that one of the reasons the plaintiffs are pursuing these lawsuits is to "force disclosure about the underlying programs." But why does Mr. Ashcroft assume that this would be "a bad consequence, not a good one"? He asserts that the plaintiffs simply want to "advance their own political or ideological disputes with the administration," at the risk of endangering our national security by "showing the world and our enemies sensitive secrets about how our national security agencies do their work." This is unfair and wrong at many levels. It is indecent of Mr. Ashcroft to attribute selfish "political or ideological" motives to the plaintiffs. What they are doing is attempting to enforce the law and the Constitution of the United States. Whether they are right or not on the merits, that is commendable and a service to all Americans. Moreover, there is no risk that this litigation will endanger the national security, because a host of evidentiary privileges protect against the disclosure of information that would in fact have that effect. The real concern of the administration in this matter, as in so many others, is to shield its own possibly unlawful conduct from public view.

Finally, I wonder precisely who Mr. Ashcroft thinks should be held accountable if this program was in fact unlawful? By aggressively asserting executive privilege, the state secrets doctrine, official immunity, and using the power of presidential commutation, this administration has worked tirelessly over the past six years to evade accountability for torture, rendition, unlawful surveillance, secret detentions, and who knows what other misdeeds. So, tell me, Mr. Ashcroft, if the telecommunications companies are granted immunity, who will take responsibility for these programs, if they are in fact unlawful? The answer, I trust, is No One.