Telecom Immunity: Winning Arguments

Here are the main arguments for telecom immunity that swayed the Senate Democrats to tie-up with the Republicans and Bush:

1. the Telecom firms were asked by the government to engage in the warrantless wire-tapping;

2. they were told it was legal;

3. the Telecom firms shouldn't be liable, it should be the Bush administration;

4. the Senate bill will put the responsibility and liability squarely on the Bush administration and not on the 'cooperative' Telecom firms;

Well Senators-who-believe-these-arguments, consider the following arguments which will put holes into these previous ones:

continued after the fold...

1. if the Telecom immunity bill is passed, and the Bush administration was guilty of illegal behavior, i.e., asking the Telecom firms to wiretap on Americans without a warrant or FISA approval, how will you prove the guilt of the Bush administration or whoever asked the Telecom firms to commit the act?

2. if the Telecoms have immunity, why would they provide evidence or cooperation to an investigative body if they already have immunity?

3. if the Bush administration (and there is evidence from the lone Telecom who didn't cooperate that this might have happened) gave large amounts of money and/or big government contracts to the Telecom firms to engage in the illegal wiretaps, since the Telecoms already have their immunity, will they reveal this to the investigators?

4. was the Telecom firm who didn't cooperate punished by not getting those same government contracts--but if the telecoms have immunity, this will be difficult to find out;

5. should the Telecom firms who received the payoffs be forced to return them since they were earned through illegal means? though if they have immunity, the 'illegal means' part will be difficult to prove;

4. if the Telecoms have immunity, we will never know what the Telecom's  high-powered lawyers advised. We will never know if they actually told them that the government request was illegal;

5. if the Telecoms have immunity, we might never know if there were innocent people wiretapped whether by accident or on purpose for political reasons (anti-war activists, Democrat-supporters, etc. may have been wiretapped) and these people will never be able to sue or it will be difficult for them to do so;

6. without evidence from the Telecom firms, the Bush administration can destroy evidence, refuse to cooperate under the guise of national security, and do whatever they want to escape sanction since the main proof has been thrown out thanks to the Telecom immunity.

•  Another Reason

  I agree with the reasons above but would add a big one.

  No one person or company should be above the law.We have an entire branch of government dedicated to determining if illegal acts occurred. If telecoms think they are innocent they should make that case in court. There is no justification for the Congress to subvert the judicial process to give telecom companies retroactive amnesty. That is something that usually only happens in a Banana Republic.

  by aprichard on Sun Mar 02, 2008 at 10:25:30 AM PDT

•  It's over

  the House is going to allow it this week.

  The fact that it is wrong is irrelevant.

  by lgcap on Sun Mar 02, 2008 at 10:29:19 AM PDT

  •  grassroots at work! nt

    by The BBQ Chicken Madness on Sun Mar 02, 2008 at 10:45:58 AM PDT

•  Your reasoning is wrong

  1.  Civil law suits against the telcos would never "prove" the lawfulness of the Administration's warrantless wiretapping of foreign intel national security information (the so-called TSP), because the fact that the telcos are the defendants doesn't alter the plaintiffs' lack of standing.  And no Judge in a civil suit would compel the government to submit evidence plausibly classed as secret.  See C. & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.").

  2.  You have it exactly backwards--immunity makes it more likely the telcos would cooperate, because they won't be liable for damages.  It's analogous to immunizing a criminal trial witness so he can't assert a Fifth Amendment right to stay silent.

  3.  Obviously, the Federal government has contracts with various telcos to provide phone service to the government.  But almost all of these have to be awarded on competitive basis in an open lowest-price bid process.  Thus the contracts are unlikely to be connected to the TSP.

  4.  See #2.

  5.  See #3.

  6. [4 in original]  You could never discover that in a civil suit anyway--it would be considered attorney-client advice and privileged.  And the telcos' argument is that the government is the expert on the lawfulness of wiretapping and so telcos were entitled to rely on the government's assurances. As liberal lawyer/writer Stuart Taylor says, "Courts have for centuries seen such a good-faith belief as grounds for immunizing from lawsuits private parties that heed government officials' requests for help in protecting public safety, especially in emergencies."

  In this context, it's worth noting that the Supreme Court specifically has declined to decide whether warrantless wiretapping of foreign intel national
  security information is unconstitutional.  See United States v. United States District Court, 407 U.S. 297, 308 (1972) ("the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."); id. at 321-22 ("this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.").  (Neither the location of the tap nor the citizenship of the callers is determinative.)  Further, no appellate court addressing the issue ever has ruled such wiretapping is unconstitutional.  See In re Sealed Case, 310 F3d. 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002) ("The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.").

  7. [5 in original]  You're right--we might never know.  (I note that the Administration denies it.)  But that's because courts likely would treat the claim as a non-justiciable "political question."  If you disapprove of the TSP, your most effective remedy lies in the voting booth in November.

  8. [6 in original]  See #1-7 above.  See also Department of Navy v. Egan, 484 U.S. 518, 530 (1988) ("courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs").  It's not a question of being "above the law"--the law does not clearly invalidate the TSP but, even if it did, suing private parties in lieu of the government is no way to settle important foreign policy questions.

  by No Oil for Pacifists on Mon Mar 03, 2008 at 06:46:12 PM PDT

  •  Great analysis No Oil for Pacifists, thanks!

    by catspaw on Tue Mar 04, 2008 at 02:54:37 AM PDT

    •  thank you

      for your gracious reply.

      by No Oil for Pacifists on Tue Mar 04, 2008 at 08:28:17 PM PDT