No Easy Answers


Monday, November 05, 2007

John Ashcroft's FISA Editorial

The core arguments and contentions in Mr. Ashcroft's November 5, 2007 editorial in the New York Times strike me as weak or divisive. Paragraphs of the editorial in blockquote. This is not the complete editorial, although I did have critical thoughts about every paragraph. Just the same, I'll bet this post is pushing the limits of fair use of the NYT's OpEd.


Uncle Sam on the Line - By JOHN ASHCROFT
Published: November 5, 2007 (NYT)

At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not blanket immunity, as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.

"Lawful" is being used as having a singular meaning, where in fact it has more than one meaning. The plaintiff's allege, and are almost certainly correct, that the TSP operated in contravention to statutory law in existence at the time. The meaning of "lawful" that Ashcroft is implying is a different meaning, that even actions that are against statutory law may be "lawful" because they are within Constitutional boundaries.

He is saying that the administration determined the surveillance was within constitutional "warrantless" boundaries, therefore the surveillance was lawful. But here's the rub, the administration refuses to divulge the legal rationale it used to reach that conclusion.

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. 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.

Therefore, ALL laws that provide a penalty for doing what the government orders are ineffective. "Just following orders." There's another longstanding principle of law. That the public can rely on published (as opposed to secret) statements of law to guide its conduct, and to understand the limits of what others can do, including the limits and parameters of government actions.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. 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?

It's doubtful that liability would attach to the extent it would ruin a telecom company. The court-imposed remedy is a tough problem to solve, but ruining the private holding of telecoms would just make obvious the hidden fact that the telecoms are private in profit motive only. For all other purposes, telecoms are state-run enterprises. Taxpayer money was spent to install equipment to facilitate interception and retention of virtually 100% of the traffic on the public network. See CALEA.

As a practical matter, in circumstances involving classified 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 presidents war powers under the Constitution a telephone company simply has no expertise in the relevant legal issues.

This is basically saying that the telecom privacy laws can't be applied, for want of facts, by the company that is charged with compliance. Yet the telecom companies are given specific orders as to which communications and information to capture and turn over to the government.

If Ashcroft is arguing that the telecoms don't have the legal rationale that justifies violating the statutory proscriptions, then even if a legal theory such as "AUMF authorizes this" exists, the telecoms who cooperated were NOT given the benefit of the government's rationale for finding the activity to be legal. If not, do they just take the government at its word? "Just following orders."

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. Indeed, contrary to the assertion of Senator Russell Feingold, Democrat of Wisconsin, no company can realistically be expected to contradict such judgments by the attorney general, as they will simply not have the facts at hand to do so.

Not the facts? Or not the legal rationale? Or not either? Does the same apply if the government seeks identifiable medical records? School records? No warrant, just the word of the snooper.

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. For domestic purposes, proper accountability already exists through the peoples elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully.

And it is precisely a legislative pronouncement, "the statutory telecom law" that is being rendered moot by granting immunity. It's not possible to have it both ways. Either the statutory law will have a substantive effect, or it does not. When the government argues that the statutory law should have no effect in this case, but refuses to publicly disclose its evolution of legal rationale and the scope of its incursion (and in this case, the snoopers resisted all court overview and resisted obtaining changes in legislation, until after the incursion was made public), then its ludicrous to say that "the balancing solution lies with the legislature." In fact, if the public was unaware of the incursion, we wouldn't be debating whether or not the government follows its own statutory laws.

What he means to say is "the balancing solution lies with the snooper, his [secret] judgement and legal rationale is always correct, and the public is not entitled to know any more than that." Fair enough. There are plenty of governments that operate that way. Add the United States of America to the list.

Assuming that the country's communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators. The Senate Intelligence Committee acted wisely. The full Congress should follow its lead.

"Patriots" and "privacy violators" are not mutually exclusive sets. The police officers who stuck a broom stick up Abner Louima's ass (or covered up the incident) are probably patriots. The insinuation that Ashcroft is making is that if you question the secret legal judgement of President Bush, then you are not a patriot. Lovely.


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