I don’t think I’ve read anything in the past five years quite so infuriating as the op-ed piece by John Ashcroft in the November 5, 2007 New York Times. Ashcroft is addressing the legislation introduced by Congress to grant immunity to Telecoms who, obeying the Bush Administration, turned over private telecommunications records to the government without seeing any kind of warrant or court authorization.
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.
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?
My God. John Ashcroft has just asserted that the president has the right to require corporations to commit illegal acts whenever he feels like it, without any regard for the law, the courts, or the congress, just because the people he appointed to high public office, did what he told them to do. Because, it is clearly implied, whatever the president does is legal.
Please notice, if you will, the amazing, magical words missing from that last line: “and the courts”. The Telecoms should obey the President not because a judge or a court has legally issue a writ or warrant on the basis of actual evidence that someone might be committing or has committed a crime— oh no! But just because the President and the officials he appointed (and can fire at will) have decided that they would like to have a look. At your phone records.
If the legality of the Executive’s directives to the FBI and CIA have been “reviewed and approved” by our most “senior legal officials”– then there is no need for the immunity legislation. The courts will recognize the legality of the Executive’s actions and the civil actions will be dismissed.
(Has anybody noticed, by the way, that this kind of argument is not accepted by the courts for any other kinds of illegal activity? “A government official said I could.” So how does that change the law? Nor is the argument that any level of government can tell you what is legal accepted by the Federal Government itself: the Bush Administration Justice Department continues to go after marijuana dealers in California even though the State government has made it legal for medical use and allows dealers to operate.)
So if the FBI or the CIA goes to a phone company and says, we’d like to tap a certain individuals telephone, it is no longer incumbent upon the phone company to ask, “and do you have a warrant?” or even, “is this legal”. As long as our “most” senior legal officials– not “some” legal officials, but our “most” senior officials– say it is legal, it is legal.
The trick here, that Mr. Ashcroft wants you to be dazzled by, is the old bait and switch technique of applying one legal principle– that corporations must obey the law– to an action that really has nothing to do with it: the will of the Federal Government– of the Executive Branch, really– to spy on people without having to trouble themselves about getting a warrant and proving they have a legitimate reason to spy.
This is a load of crap. Why does Ashcroft imagine a company like AT&T, Verizon or Bellsouth is too stupid to ask whoever the government sends to their offices: “and where is your warrant? Where is your court order? What judge authorized this breech of personal privacy?”
Which is what one of the telecoms did. Qwest consulted their lawyers who told them that what the government was asking them to do was a felony. Qwest told the government to buzz off. The government, knowing they didn’t have a leg to stand on, did just that. They didn’t arrest Qwest’s chief executive for “breaking the law”. They didn’t seek an injunction from a court (duh!). They went away.
What makes this doubly infuriating is this phrase at the beginning of the quote above: “longstanding principles of law…. ” So Ashcroft is saying that Bush’s actions are already legal. Then why the hell does Congress need to grant anybody immunity! They don’t need it.
If there are lawsuits, they only need to tell the judge: “agents of the Executive Branch of Federal Government told us to do it. That means it’s legal.” And the judge will say, “Oh. If the government did it, that means it’s legal? Let me check the constitution for a minute…”
I think Mr. Ashcroft knows about this problem. Just as Bush is beginning to realize that all the waterboarding… .the torture… the renditions… GEEZ. WHAT IF WE LIVED IN A COUNTRY THAT HAD RULE OF LAW, AND COURTS, AND A JUSTICE SYSTEM… WE COULD BE ARRESTED.
Do you think Rumsveld ever worries? Cheney? Gonzales? I think they do. I think they might just be starting to realize that once the state-induced hysteria is over with and people come to their senses they are going to ask themselves why government officials were authorizing torture and extraordinary renditions and warrant-less surveillance.
The biggest trick here? John Ashcroft knows very, very will that shifting the liability to “senior” (most or not) legal officials will effectively inoculate the Bush administration from any liability at all: I guarantee you that Bush will make lavish, lavish use of the Presidential Pardon in January 2009. He won’t give a damn anymore. There never was any reason to give a damn. There was never the slightest reason to think that accusations of hypocrisy or viciousness would ever detract from that folksy, all-American, evangelistic charm: we are the boys. We handle things. We win.
Someone else will come along and clean all that up. Cash in now, while you have the chance.
In the meantime, John Ashcroft is, hilariously, asking the government to make something legal because it is already legal. He wants it to make it more legal.
If this isn’t disturbing enough, consider the fact that there is some evidence that the Bush Administration initiated at least some illegal surveillance before 9/11. Check this out.
While Ashcroft advises corporations to do whatever the government tells them to do, without question, without regard for the law or morality– Congress chastises Yahoo for turning information over to the Chinese government about the activities of dissident journalist Shi Tao!
2022-05-07: even more infuriating: the Obama Administration, fearful of provoking a Republican backlash and crying fit, backed away from prosecuting anyone for these crimes. This, unfortunately, is part of Obama’s legacy: gutlessness.