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.