Security

Telecoms Continue Push For Get-Out-of-Court Card for Illegal Spying

The nation’s telecoms have been quietly lobbying Congress to pass legislation that would immunize them from any liability for violating the nation’s privacy laws for the helping the Administration spy on Americans without warrants, according to Newsweek‘s Michael Isikoff and Mark Hosenball. The Administration is pushing for the provisions as well, telling Congress it’s simply […]
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The nation's telecoms have been quietly lobbying Congress to pass legislation that would immunize them from any liability for violating the nation's privacy laws for the helping the Administration spy on Americans without warrants, according to Newsweek's Michael Isikoff and Mark Hosenball. The Administration is pushing for the provisions as well, telling Congress it's simply a matter of "fairness."

It's also conveniently a matter of providing immunity to government officials involved in getting telecoms to install spy rooms and turn over phone and email records to the government.

[C]ongressional staffers said this week that some version of the proposal is likely to pass—in part because of a high-pressure lobbying campaign warning of dire consequences if the lawsuits proceed. Director of National Intelligence Mike McConnell seemed to raise the stakes recently when he contended in an interview with the El Paso Times that the private lawsuits could "bankrupt these companies."

Among those coordinating the industry’s effort are two well-connected capital players who both worked for President George H.W. Bush: Verizon general counsel William Barr, who served as attorney general under 41, and AT&T senior executive vice president James Cicconi, who was the elder Bush's deputy chief of staff.

Working with them are a battery of major D.C. lobbyists and lawyers who are providing "strategic advice" to the companies on the issue, according to sources familiar with the campaign who asked not to be identified talking about it. Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President George W. Bush who now represents AT&T.

The legislative language in the Administration's proposed language from April makes clear that the immunity provision applies to anyone - Administration employees included - involved in the program and would even prevent any state or federal regulatory body or even Congress from imposing any penalty for anything related to the program.

[N]o action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence ctivity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.

As Glenn Greenwald wrote earlier this week:

[R]etroactive immunity turns the "rule of law" into an even greater mockery than it has been for the last six years. The central premise in granting immunity is that telecom companies did nothing wrong – even if they violated the law – because they cooperated with warrantless spying at the behest of the President.

But we don't actually live in a country where private actors are permitted to commit crimes and violate laws provided that the President tells them that they should. The President has no greater power to authorize others to break the law than he does to break the law himself. Quite the contrary, Article II of the Constitution imposes the opposite obligation: "he shall take Care that the Laws be faithfully executed." Lawbreaking is still illegal even if George Bush says it should be done. Does that principle really need to be explained?

Remember that when the Administration asked Qwest to help with the program, the then-CEO Joseph Nacchio turned down the request on the grounds it would be illegal. He asked the Administration to come back with a lawful order. None was ever produced.

Case Dismissed? Newsweek CC Photo: Plasticbystander

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