KOS Writer Gets it Wrong

Daily Kos diarist catspaw offers "arguments which will put holes into" the justification for immunizing telephone carriers from pending civil suits in connection with the Administration's terrorist surveillance program (discontinued since last year). In particular, catspaw asserts:

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;



6. 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;



7. 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;



8. 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.

My response (with minor edits to my Kos comment):

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. catspaw has 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. You could never discover the telco lawyers' opinion in a civil suit anyway--it would be considered attorney-client advice and privileged. In any event, 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. catspaw is correct--we might never know if the Administration abused its powers. (I note that the Administration denies it.) But that's because courts likely would treat the claim as a non-justiciable "political question." If catspaw and others disapprove of the TSP, their most effective remedy lies in the voting booth in November.



8. 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").

Conclusion: I've argued that the TSP was both wise and lawful. So it's not a question of being "above the law." Still, even if it were, suing private parties in lieu of the government is no way to settle important foreign policy questions. If you've got the votes--and the stones--impeach the President. If not, come November, support someone with a different policy on wiretapping. That's the meaning of popular sovereignty. But stop wasting judicial resources trying to turn the courts into a three-ring circus arbitrating a political dispute between Congressional Democrats and the Executive Branch.