Why Is Retroactive Immunity Necessary to Assure Future Cooperation?

Jacob Sullum | October 18, 2007

It looks like the Senate (but not, so far, the House) is prepared to grant retroactive legal immunity to telecommunications companies that violated the Foreign Intelligence Surveillance Act by allowing warrantless monitoring of international phone calls and email involving people in the U.S. Congress approved such surveillance last summer, giving the attorney general and the national intelligence director the power to order it without court approval. That temporary measure, which expires in February, gave telecommunications carriers prospective immunity for cooperating with such surveillance in the future. But the Bush administration says they should also get a free pass for going along with the surveillance when it was still clearly illegal. Whatever the merits of warrantless surveillance aimed at preventing terrorist attacks, why send a message that private companies can break the law with impunity in the name of national security? We want them to worry that cooperating with government agents when such cooperation is illegal could expose them to penalties and lawsuits. We want them to consult their lawyers and think twice. Why bother imposing separate legal obligations on them if the assurances of a goverment agent are enough to make everything OK?

Comments

|10.18.07 @ 2:06PM|#

I'm sympathetic to the idea that there could have been some heavy handed 'discussions' between Administration guys and the phone companies about their 'obligations'. Still, there needs to be a public handslap at least.

|10.18.07 @ 2:09PM|#

I would only favor immunity for the telcos if they dime out their contacts at DOJ and the Executive. And then those contacts dime out whomever gave them the order to go to the telcos.

|10.18.07 @ 2:15PM|#

I forgot to add "in a televised hearing."

|10.18.07 @ 2:24PM|#

I think the corporations involved, and the individuals who helped with the wiretapping, should be given immunity.

By the Special Prosecutor.

In exchange for their testimony during the criminal trials.

|10.18.07 @ 2:26PM|#

They should get immunity, because our Great Decider said so. /sarcasm

Seriously though, if we are going to end up with an emperor, I think each successive one should be called the "Decider."

Kinda like each successive Roman dictator was called "Caesar."

|10.18.07 @ 2:26PM|#

Can someone explain how granting retroactive immunity to telcos is not an Ex Post Facto law, expressly prohibited by the Constitution?

|10.18.07 @ 2:29PM|#

We want them to consult their lawyers and think twice...

Jacob, if I may...We want them to consult their lawyers and think twice. They don't.

|10.18.07 @ 2:29PM|#

SteveG,

See my post above...

|10.18.07 @ 2:32PM|#

SteveG,

IANAL, but my understanding is that you cannot make something illegal ex post factorially, but you can make something legal.

I'm sure someone will correct me if I'm wrong.

BTW, where were the telco lawyers? Wouldn't AT&T have about a million staff lawyers? Wouldn't one or two say, "Hey! Guys! We may want to rethink this."

Drawn Asunder|10.18.07 @ 2:38PM|#

Here's an idea:

Gmnt Spooks, blackbag men: go to JAIL
Telcom collaborators: go to JAIL
Various Exec Branch officials: go to JAIL

If the crimes they were committing were so essential to national security, don't immunize them, put them in front of a jury. How is this not the only legal option?

|10.18.07 @ 2:46PM|#

Actually, joe, I disagree. Take down everyone. Letting the companies off the hook is bad, too.

|10.18.07 @ 2:51PM|#

You gotta go after the big fish, P.L. If that means cutting deals with the small fry, so be it.

|10.18.07 @ 2:54PM|#

Actually, here's a brain twister:

Does the President's power to Commute and Pardon extend to entities, such as corporations?

|10.18.07 @ 2:58PM|#

In honor of the aforementioned big fish and little fish, here's PJ Harvey doing Down By The Water.

Drawn Asunder|10.18.07 @ 3:02PM|#

de stijl:

Here are clips from her show in LA on Monday:
http://www.youtube.com/results?search_query=pj+harvey+orpheum&search=Search

|10.18.07 @ 3:04PM|#

You mean she has other fans?!?

Yes!!!

|10.18.07 @ 3:13PM|#

Love, love, love Polly Jean. And, good God, is she sexy.

Thanks, Drawn Asunder!

|10.18.07 @ 3:21PM|#

She has a song called "Joe."

|10.18.07 @ 3:32PM|#

joe,

Yeah, but they could just say, "Ve vus only obeying orders" in the future if they're given such an opportunity. The evidence is there, without their cooperation. A little more effort is worth the fuller net. And deterring future "cooperation of a similar sort.

I read "telco lawyers" above as "techno lawyers". Which made me think of the "Technoviking". I'm spending entirely too much time on Urkobold.

|10.18.07 @ 3:43PM|#

Pro Libertate,

Lord knows I'm not the biggest defenders of corporations here, but consider: Qwest's CEO refused to play ball on some spying program the adminstration wanted. They pushed him, and he refused. And then they sent the Justice Department after him, and now he's in jail.

They emptied the register, PL, because the robber showed them the gun. I can muster some forebearance here.

thoreau|10.18.07 @ 3:52PM|#

I'm with joe on this one.

Immunity in exchange for testimony.

|10.18.07 @ 3:57PM|#

Hey, now! I beat joe by 15 minutes with the idea and he gets the credit.

I will not be ignored!

|10.18.07 @ 4:01PM|#

I think it was the Special Prosecutor and criminal trial, de stijl.

I mean, granting them immunity, but only if they open up to Alberto Gonzales very favorite government lawyers isn't exactly earth-shaking.

|10.18.07 @ 4:03PM|#

de stijl:

That may be true but Joe is much more popular here and isn't everything just a popularity contest?

|10.18.07 @ 4:03PM|#

Christopher Dodd put a hold on the FISA bill.

|10.18.07 @ 4:05PM|#

joe just refined it. He does that to me all the time.

Psst! Did you hear he's into nasty on-line "comfort women" porn? What a freak!

GILMORE|10.18.07 @ 4:15PM|#

I'm not so sure many of the Telcos went along gladly. Wasnt it only Verizon that stood up and said, 'no', (might have been someone else, which sparked the public interest in the thing in the first place?

I'm pretty sure from things i've read over the years that there was an implicit threat from the Govt that there could be 'consequences' if they didnt comply... and that there were in fact incentives to do so.

It's ugly all round.

|10.18.07 @ 4:32PM|#

Re: PJ Harvey

joe, go to Williamsburg, Brooklyn and you can trip over her fans in the street.

Did you ever see Book Of Life? She plays Mary Magdalene. (And Martin Donovan is Jesus.)

|10.18.07 @ 4:34PM|#

There's a lot of misinformation out there folks. Since the implementation of CALEA in the late 90's, telecommincation companies have had no hand in government surveillance of telephone lines. The government has direct access to the switch.

http://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act

|10.18.07 @ 4:45PM|#

SugarFree,

Cool! I love Hal Hartley movies and now I have a new one to watch!

|10.18.07 @ 4:51PM|#

Christopher Dodd put a hold on the FISA bill.

Dammit, I just found out about that from Salon. Props to Dodd for taking a stand.

|10.18.07 @ 4:54PM|#

Glenn Greenwald gives Dodd his due here

|10.18.07 @ 4:59PM|#

de stijl,

I was very lucky to catch The Unbelievable Truth in Cinemax back the dark days of 1990 or so, back when they ran indie movies and softcore porn. My wife and I have been huge fans ever since. I've always been fascinated with how there are very few middle of the road Hartley fans--even moreso than Wes Anderson--you either love him or loath him totally.

If you get on a kick, make sure to see Surviving Desire if you haven't already. Donovan probably does his best acting ever.

|10.18.07 @ 5:13PM|#

My first was Trust (RIP, Adrienne Shelley) also on cable - The Movie Channel maybe - and around the same time as you and your wife. I fell in love. I've tried to see the biggies since then: Flirt, Henry Fool, Amateur.

I've yet to see Fay Grim, but it's on my list.

JBinMO|10.18.07 @ 5:14PM|#

"Can someone explain how granting retroactive immunity to telcos is not an Ex Post Facto law, expressly prohibited by the Constitution?"

It is not. Ex Post Facto bans the government from making something illigal and prosecuting you for doing it before it was illigal.

|10.18.07 @ 5:41PM|#

I'm not sure I totally understand. Did the government come to the companies and say "this is legal and we really need you to do it to save lives?" I can see that their past reliance on this, and then subsequent investigation by a different branch, would lead future companies to never trust the government on this again. So maybe this is one of the few times where I think I'm with the corporations. If

JBinMO|10.18.07 @ 5:50PM|#

Corporations shouldn't trust the government.

|10.18.07 @ 5:53PM|#

"Corporations shouldn't trust the government."
Yeah, but vice versa too my friend.

|10.19.07 @ 5:57AM|#

Doesn't this imply that the wire taps were illegal? What then does the administration argue? "They did it for us, we're not liable!"

I don't think i like that.