Ashcroft's Argument for Telecom Immunity is a National Disgrace

On Monday's New York Times op-ed page, former Attorney General John Ashcroft (and current lobbyist for the telecommunications industry) presents several reasons why the pending lawsuits filed against "the nation's" telecommunications carriers should be abruptly terminated. His arguments boil down to this: the prerogatives of the president operating according to the "unitary executive" theory trump the Constitution's 4th amendment guarantees against unreasonable and warrantless searches, even if that "unitary executive" theory was legally dubious all along.

My own view is that his logic is abominable.

First, Ashcroft argues that even if the Bush administration acted unlawfully in requesting this information from telecommunications firms, those firms shouldn't be held accountable. If they are found guilty in a court of law, he thinks these rendered judgments, even if decided according to law and as upholding the Constitution, would be unfair:

Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.

Those firms, he explains, were acting on "explicit assurances from the highest levels of government that the activities in question were authorized by the president and determined to be lawful."

Gads, since when does Constitutional adherence depend upon a wink and a handshake? If someone from the attorney general's office told me that murder's okay, or if they told Blackwater that assassination of foreign officials is okay, would such law-by-fiat actually become the law-of-the-land?

Ashcroft responds, okay, maybe we were a bit wrong, but blame the Bush legal team, don't blame my current clients:

The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company's, to deal with the consequences if they are wrong.

That argument about accountability would be much more credible if Ashcroft were, at the same time, calling for Bush and Cheney's impeachments.

Ashcroft then poses a rhetorical question: Why should telecommunications carriers, who at the time knowingly committed these illegalities, lose big bucks when the president assured them that he would take care of it? Isn't the president's word legally binding über alles?

By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

We've heard this defense before: They were just following orders. Give 'em a break. Besides, how should they have known that the president and his legal team were thoroughly whacked out in their views that the commander-in-chief can re-write the Constitution as he sees fit? Ashcroft refers to "longstanding principles of law" that allegedly establish mere reassurances from government officials as a legitimate basis for overriding the plain language of the Constitution.

Next, Ashcroft makes the classic "ignorance of the law" defense:

As a practical matter, in circumstances involving classical intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program--which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president's war powers under the Constitution--a telephone company simply has no expertise in the relevant legal issues.

Trust us, he is saying. Don't read the plain language of Constitution for yourself--because there might be hidden clauses and penumbra that override your rights in certain circumstances, even though they are left unspecified in the Constitution. And you can't assume that high-priced corporate lawyers can read the Constitution, either. The Government knows better. In matters of surveillance, they will always know better. Yet, they can't tell you the pertinent details--because so much has to be conducted in secret. When the attorney general comes to a company and says, please violate the Constitution (but it's okay by us), the company should willingly and unquestioningly comply:

If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.

Poor companies. They followed the Bush administration. They trusted them. And now they may be found guilty, and liable, in courts of law. Ashcroft doesn't think the legal system should be allowed to go forward. He wants it cut off at the knees. Congress should step in, he says, and simply recognize and reinforce the cockeyed theory of presidential powers that got us to this pathetic point in the first place. Cover your tracks. Two wrongs make a right.

Having exhausted his legal reasoning for granting retroactive immunity to his clients, Ashcroft next turns to the "national security" argument. These lawsuits, he says hysterically, will set a dangerous precedent. Companies will be less likely to trust the government. In other words, they will be less likely to do the government's illegal bidding. If the government can't out-source much of its surveillance activity to private companies, he adds, then we are practically waving the white flag to the terrorists:

Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation's most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Finally, Ashcroft goes for the final blow, a low one at that. These lawsuits, he says, are being presented as if they further the cause of democratic accountability and public lawfulness, but all they really do is to help the terrorists:

Although the lawsuits are couched in the language of accountability and the public's right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work.

Clearly, Mr. Ashcroft wants a big payday from his clients. But in addition to lobbying for retroactive immunity for telecommunications companies, he is effectively asking for a newly codified and prospective national policy of granting virtual carte blanche to the Bush administration in its increasingly privatized surveillance tactics. What matters now, Ashcroft is telling us, is that the executive branch should be able re-write the Constitution as it sees fit, and no party should have its day in court to be able to say otherwise.

Comments

[magen]

Ashcroft's arguement is complete BS. Several communications companies REFUSED to allow warrantless wiretapping, anticipating the illegality of it. Why should the ones who went along be pardoned?

Also his op-ed completely ignores the fact that this was started BEFORE 9/11. WHY??????????

[Manicsuperstar]

While I am the last person on earth to give a damn what happens to AT&T or Verizon, and while I think Ashcroft is, at best, a man of dubious morality and integrity, nevertheless, on this issue he does make some good points. The Bush administration didn't go to these telecoms and ask them to commit assassination; they were asked instead to help prevent the next 9/11. What CEO in the world is going to risk shouldering the blame for the next big terrorist attack because her/his company took a principled stand against the requests of the Justice Department and White House? Who would? In retrospect, I think we can mostly agree that this was a fallacious choice. Yet, at the time, I'm sure that's how it was presented, and so the various executives at these corporations plugged their noses and dived into this mess, fearing the possibility, however unlikely, of what could happen if they didn't. By not even attempting to go through the proper legal channels to get permission to do this from Congress, the White House put these companies in a highly untenable position. Again, while I don't care a bit about the welfare of AT&T and Verizon, and I believe they probably should have showed a little more backbone and not caved-in so easily to the administration's demands, nevertheless, in this case, they are serving now merely as the unlucky surrogates for a legally untouchable White House.

Where I differ with Ashcroft is on his attempts to justify Congressional action here. I don"t buy his argument about revealing "sensitive secrets" to the enemy. That cat is long out of the bag. These corporations have very deep pockets and are certainly capable of defending their own actions without protection from Congress. Let the courts, and the court of public opinion, decide the legality and appropriateness of their choices. Many of Ashcroft's other arguments here are solid. Frankly, I think they'd win.

[Not Blind]

The telecom firms already know the law. They have in-house attorneys who scrutinize and write their own privacy policies, and certainly knew warrants are required fo wiretapping. The fact that Qwest and other firms said "NO," indicates there was ambivilence about the legality of the executive order. The administration's promise of legal authority, national security or protection to these firms is precisely what FISA and our Constitution is about: the LAW. Being an Attorney General and head of the JUSTICE department, Ashcroft, Gonzalez and now (probably and sadly) Michael Mukasey should focus on the rule of law with regard to legal, civil and human rights whether it concerns torture, illegal surveillance or any form of repression. Instead, they are partisan enablers, political loyalists and endorsing illegal actions.
At Nuremburg, Nazis used the defense they were "following orders," yet paid the price for their actions. They had their day in court, access to legal counsel, were not tortured, tried and convicted based upon evidence, fact and witness testimony. Today, we no longer have the rights even Nazis had. Instead, we have illegal detentions, torture, un-Constitutional searches.
Given that Prescott Bush conducted business with the Nazis, and was a financier of Hitler, as well as a profiteer of WWII, it's no surprise that "W" is keeping up with the family tradition of fascism, profiteering and power-grabbing on the backs of millions of victims of their lies and crimes.
The only reason Ashcroft, Bush and Co. want to quell the lawsuits against the telecom firms is to keep secret their plot to overthrow the Constitution, our democracy and destroy our once free republic.

[usedtowander]

What is more of a disgrace is that the NY Times published his obviously one-sided opinion without a simultaneous counter opinion.

[ahornick]

It seems the only way to regain our Constitution is to vote out EVERY Republican possible. They gave us George Bush and they continue, to this day, to enable him. They have no shame.

Now the Democrats are only a little better in that they are still standing on the sidelines wringing their hands, but think about it. Once there is a Democratic President, the remaining GOP minority will use every trick in their book, much more successfully than the Dems, to reinstate the Constitution, and checks and balances, for the sole purpose of denying the King George's powers to a Democrat.

The hypocrisy of our elected officials may be the only thing to help us now.

And that is why it will take years to undo the damage (far too much to enumerate here) George Bush, his cronies and our elected officials have done.

[paixa3]

The entire government has become A NATIONAL DISGRACE.

[MelCarnahan]

Someone please investigate the activities of the DOJ and its associates during his tenure. It was not only ultra-politicized, it persecuted innocent people on the basis of race, religion, nationality and political affiliation -- and to give the Bush Pioneers and campaign contributors a vast unfair business advantage over their domestic (and allied foreign) competitors. Surveillance was abused to empower evangelicals, burglarize businesses, destroy lives and plan state-sponsored assassinations of Democrats and civil rights leaders who criticized the administration. Don't let them shred the remaining documents. Look at the patterns. Look who they went after. Document it. Altogether, it was a travesty far more grave, unjustified, organized, wide-reaching and malicious than the death of Mel Carnahan.

[ljsfolly]

I remember a time when "Big Brother is Watching You" was some kind of paranoid plot on a book or movie that only a few kept thinking it might happen. Now that we have it as fact how many on both sides of the aisle have supported what has been done to take away our freedoms, our rights? I am not sure why anyone thinks bush and co should get away with anything and the telecoms should know by now that if it's used for the private citizen it will be used againest the big corp. Bush cares not as long as power is added to him.

[Macready]

Thank you for posting . . . this is all doublespeak to keep his paymasters happy and free from prosecution . ..but hey they knowingly broke the law . . . they are responsible for their actions . . . they have to be prosecuted . . .

Don't know how he can be so naive as to think: "Although the lawsuits are couched in the language of accountability and the public's right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work."

Duh . . . the world and our enemies already know . . . our allies are shocked -- the only people who really don't know the extent of the corruption are the American public . . . high crimes have to be punished John . . . dem's the rules

[HypocrisyAlarm]

In the Constitution, article 1, section 9 (Limits on Congress): "No Bill of Attainder or ex post facto Law shall be passed."

How can Congress pass an immunity law without breaking article 1, section 9? The alleged law-breaking took place in the past. Now the idiot-in-chief and his cronies want to write a law granting immunity. How is that NOT an ex post facto law?

[oogabooga]

I thought Ashcroft disappeared. Well, Mr. Ashcroft, the Constitution is plainly written, even for fascists. It protects us and our possessions against unreasonable searches without probable cause warrants. ATT has no probable cause in listening to my conversations. They broke the law. And ATT should pay up. Or can we all get immunity retroactively after we break a law? How about it?

[realpolitic]

Never before have so many minds been so focused on evading accountabilty then with the Bush administration. With Hurricane Katrina, it was "let's not play the blame game." A similar refrain was heard with Abu Gharib. With the missing weapons of mass destruction in Iraq, they said to "look forward not back" or something to that effect.

Now with this mess, the argument is why should communication's companies be held responsible for breaking the law when the government told them to. Of course, for ordinary citizens, ignorance of the law is not an excuse and most ordinary citizens do not have a bevy of high priced attorneys to call on for advice.

The final, most insidious, argument made is that accountabilty will kill us or, as Ashcroft says, we are "helping our enemies" by following the rule of law.

The buck does not stop at Bush's desk, it is passed like a hot potato to the private sector or wherever it may land.

[aznurse]

I like the fact that he heads a consulting firm that has telecommunications companies as clients. He wants us to trust him. Just like we should have trusted Alberto. I wonder if he remembers the late night visit to the hospital or was he too sick or drugged. He's danced with the devil. I just looked at Times and his op ed piece isnt on the front page anymore.
No words can express my contempt for this thing that is running this country.

[JimSullivan]

Hi John:

The "unitary executive" concept behind all of this gives me the willies (sp?). This notion seems like such a betrayal of the U.S. Constitution--hell, for that matter, I'm not even sure this theory would pass the Magna Carta litmus test!

Thanks for this careful parsing out of the ugly absurdity of this bankrupt political theory and Ashcroft's variations on that theme.

Although the never-ending parade of these frightening arguments inevitably starts to wear us down, analysis like yours reminds us of what is really at stake here.

Jim

[Spookcatcher]

Ashcroft is a War Criminal. What is amazing is that he is still so naieve that he doesn't evenrealize that had he signed his approval for the bradbased unfettered domestic spying activity launched upon the general population by the Fascist Bush/Cheney Administration in the hospital when Gonzales came, he would surely have died. He is a perfect example of the mentality and brainwashed populus, some 24% (amazing isn't it), that still believe Bush/Cheney is good for America! A law degree is not a leading indicator of one's understanding of the rule of law as an applied concept of a Republic system of Democracy.