FISA Fight: A plaintiff speaks

Peter Y. Sussman is a journalist, a former editor of the San Francisco Chronicle, who writes about the American justice system and prisons. He's also a plaintiff in the ACLU's pending case against AT&T. His private records were among those that AT&T shared, illegally, with the Bush administration.

This case, the only avenue left for remedy for this American and all Americans who had their private calling records illegally surveilled, is at the heart of the effort by the administration to grant the telcos amnesty for their illegal activity. Here are Sussman's thoughts as a plaintiff:

After Saddam Hussein was executed, President Bush reassured the world that the Iraqi dictator received "a fair trial – the kind of justice he denied victims of his brutal regime."

The Bush administration has similarly promoted "the rule of law" and "an independent judiciary" for countries such as Cuba, Burma and Iran.

Yet that same president is pressuring Congress to deny Americans our day in court before an independent judiciary by repealing the rules of law that guarantee the right to sue a private company for illegal infringements on our privacy rights.

I am a plaintiff in one of two lawsuits brought by the American Civil Liberties Union against phone companies – in my case, AT&T – for illegally sharing private customer calling records with the federal government. My co-plaintiffs include other journalists and attorneys, psychiatrists, doctors, ministers and a former Republican member of Congress.

The administration is trying to deny us our legal rights through a strange new doctrine called "telecom immunity" or "retroactive immunity"....

Before Congress is sucked into this rhetorical swamp, consider that AT&T and other phone companies that buckled to secret administration demands for our records had a legal alternative: They could have insisted that the administration first obtain the court order that they – or their corporate attorneys – knew was necessary. That's what another large phone company apparently did, demonstrating more respect for the rule of law than AT&T apparently has. AT&T would have been legally obligated to respond to a valid warrant, saving "millions of lives" at that "very moment."

Instead, AT&T chose to violate federal and state law.

I and my fellow plaintiffs don't stand to win any money through our lawsuit, much less billions of dollars, but we do hope to assure governmental accountability, to open to public scrutiny the actions of corporations and government that have teamed up to deny citizens the rights guaranteed by law....

Congress, as it considers corporate immunity this week, must resist fear-mongering rhetoric and permit American citizens the same right to our day in court as President Bush says was granted to Saddam Hussein.

What does Bush have to say about Americans having their day in court?

Q You can get the Congress to protect telecom companies from lawsuits, but then there's no recourse for Americans who feel that they've been caught up in this. I know it's not intended to spy on Americans, but in the collection process, information about everybody gets swept up and then it gets sorted. So if Americans don't have any recourse, are you just telling them, when it comes to their privacy, to suck it up?

THE PRESIDENT: I wouldn't put it that way, if I were you, in public. Well, you've been long been long enough to -- anyway, yes, I -- look, there's -- people who analyze the program fully understand that America's civil liberties are well protected. There is a constant check to make sure that our civil liberties of our citizens aren't -- you know, are treated with respect. And that's what I want, and that's what most -- all Americans want.

Now let me talk about the phone companies. You cannot expect phone companies to participate if they feel like they're going to be sued. I mean, it is -- these people are responsible for shareholders; they're private companies. The government said to those who have alleged to have helped us that it is in our national interests and it's legal. It's in our national interests because we want to know who's calling who from overseas into America. We need to know in order to protect the people.

It was legal. And now, all of a sudden, plaintiffs attorneys, class-action plaintiffs attorneys, you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train -- are trying to sue these companies. First, it's unfair. It is patently unfair. And secondly, these lawsuits create doubts amongst those who will -- whose help we need....

The rest of the answer was all about fear, and we've all heard enough of that. Which leads us back to the basic question: If it was truly a legal program, why do the telcos need amnesty?

Okay, that was a trick question. Of course it wasn't legal, and Bush and the telcos certainly know it. What they don't want us to know is just how illegal it was--how many Americans were targeted, why they were targeted, and what the scope of this program was.

The American people deserve their day in court. Bush tells us to "suck it up."