Bowing to White House pressure, Congress passed the 2007 Protect America Act in August, eviscerating any meaningful checks and balances on a sweeping range of governmental surveillance. Now that it has protected telecommunications giants from all future liabilities, the Administration is demanding they be granted amnesty from legal liability for past complicity in spying on ordinary Americans.
The House Intelligence and Judiciary Committees this week debated and marked-up a bill, the RESTORE Act, that undoes some–but not allof– the damage wrought by Protect America. So far, the leadership of those committees has beaten back Bush Administration-backed proposals by Rep. Peter Hoekstra (R-MI) to grant the telecoms retroactive immunity.
Congress should now stay the course, resisting what will be rising Administration pressure to give the telecoms amnesty for their past illegal acts.
The professed reasons for protecting commmunications giants from liability in secret wiretapping are no less disingenuous now than they were when these rightfully defeated provisions were first proposed after 9/11. Rather than promoting security, the push for telecom amnesty furthers the larger ideological ambitions of the Bush Administration: expanding government power while choking off accountability for the way that power is used.
Director of National Intelligence Michael McConnell and his allies offer four main arguments in support of the amnesty proposals, each more vacuous than the next.
First, McConnell argues that lawsuits could "bankrupt" the companies. If McConnell is to be believed, we must choose between our civil liberties and our cell phones. But his claim is not credible. At best, such lawsuits would face a long and torturous path to any money judgment, including multiple trips to the US Supreme Court. This path will take years to travel, with the odds stacked against a loss for the telecoms.
Perhaps the best indicator of the fiscal hit the telecoms are likely to take from those lawsuits is the stock market itself–and the evidence there scotches McConnell's claim. Just one day after the Electronic Freedom Foundation filed a class-action suit against AT&T for complicity in the government's privacy invasions, the company's stock rose to 50 cents above its pre-lawsuit closing price (from $26.05 the day before the suit was filed to $26.55 one day after). And when AT&T's motion to dismiss the case was denied, the price fell 17 cents, to $27.30. Clearly, the market is not impressed by the suits' potential for bankrupting anyone.
Second, intelligence sources have told Newsweek that they are in "near panic" that telecoms will be "forced to terminate their cooperation" with the NSA for fear of liability. This might surprise the White House–since it has already immunized the telecoms from liability for their cooperation moving forward. Simply put, telecoms already have amnesty for what they do in the future.
Third, amnesty proponents turn to the familiar tactics of fear: they argue that permitting lawsuits against telecoms to proceed will irrevocably undermine America's safety by revealing our classified means of electronic intelligence-gathering to the world. This is yet another specious contention. Courts have multiple tools in their kit to preserve the secrecy of validly classified information, tools the government has already exploited to hide the truth regarding various practices, from torture, to extraordinary rendition, to warrantless wiretapping.