I really need to be slightly less skeptical about the current Democratic Congress. Once again, they have done the right thing — after, as Winston Churchill once said about Americans in general, “exhausting all other options.”
They finally passed a law explicitly granting immunity to the telephone companies for cooperating with the government on tracing and/or tapping communications between foreign sources believed linked to terrorism and people within the United States. (To the best of my knowledge, it was indeed limited to communications where at least one party was outside the US at the time.) Opponents of the Bush administration wanted to sue the phone companies for aiding and abetting this program.
It’s probably a bad idea to take legal advice from a work of fiction, but in Tom Clancy’s “Clear And Present Danger,” an FBI agent says that a CIA officer who’s gotten involved in a rogue intelligence operation is not in any personal legal risk. The agent says that there was a legal precedent out of Watergate — “Martinez-Barker” — where two of the burglars were exonerated for the break-in because they were acting in good faith and carrying out what they had very good cause to believe were legally sanctioned activities by the United States government. The basic idea was that the burglars (and, likewise, the CIA officer) had every reason to believe they were acting under the sanction of the United States government, and not acting out of malice or greed or for any personal gain.
In the Watergate case, the real crime was committed by those who sent the burglars and persuaded them that they were acting under color of law. The burglars themselves were pawns, carrrying out what they thought were legal (albeit highly unusual) activities. Likewise, Clancy’s CIA officer had been acting with the authorization of his superiors — who were, themselves, acting in defiance of the law.
I can’t find an online reference to back up Clancy’s assertion, but to me the ethical principle behind his argument is sound. When the government comes to you and asks for your cooperation in fighting terrorism, there really ought to be a good-faith assumption that what they are asking you to do is legal. And if you have your doubts, then — in most cases — you should be able to rely on their assurances that you will not be putting yourself at any risk — physical or legal.
This is not to say that it creates any sort of legal obligation to do so, or that such requests should completely bypass the individual or corporation’s own conscience and reason. But that should be reserved — like illegal orders in the military — for the most egregious examples. For example, if an FBI agent comes up to you and says “we need you to kill Bob down the street,” then one should not bypass one’s own judgment and just kill Bob, saying that “if this guy from the FBI told me to do it, it must be OK.”
In this case, the government agents who approached the telecom companies had carefully written and prepared legal documents demonstrating that what they were asking for was legal, so the telecoms had no reason to argue with them on that basis. To punish them for their cooperation is just wrong.
Now, if the deeds were actually illegal, then the government officials who arranged for it should be punished. They are the ones with the intent. Those who carried out the deeds — in good faith, trusting that the government knew what it was doing — should not be punished.
So, why the big push to keep the telecoms on the legal hook for what they did?
Quite simply, it’s ideological. It’s a move by the opponents of the Bush administration to lash out and cause some harm, however they can.
Look at it from their perspective. For all their successes as measured by public polling in demonizing the Bush administration, they have been continually stymied in efforts to actually put deeds to their words. Despite numerous attempts to end the war in Iraq, they have never succeeded (and, I think, haven’t even tried) to repeal the Authorization for the Use of Military Force that gave the Bush administration its legal founding for the invasion and occupation. They have been blocked at every attempt to cut the funding, or attach strings to it that would bring the fighting to an end (by giving up). Their legal challenges have been thwarted at most every turn (witness the aftermath of the “Haditha massacre” — every single Marine brought up on charges has been acquitted thus far, despite Representative Jack Murtha’s pronouncing them guilty from the outset). While they describe the war as an uninterrupted string of disasters, failures, wrong decisions, and exercises in futility, those terms would be better applied to their own efforts.
So here’s part of the Bush administration’s strategy for fighting terrorism. Maybe they can’t directly get the Bush administration, but maybe — just maybe — they can “punish” the telecoms for having the effrontery to cooperate the government. If they can’t “get” Bush and his cronies, then maybe they can make it just too damned expensive for anyone to cooperate with the government.
I’m not quite certain how it happened, but the Democratic-controlled Congress managed to do the right thing yet again. Despite all the sound and fury surrounding the issue, they voted to exempt the telecommunications corporations that had cooperated with the NSA from being sued (most likely for billions in unspecified “damages”) by anti-war, anti-Bush activists who simply can’t seem to succeed in any other way.
Well, here’s another setback to the frothing idiots. And, more importantly, a precedent has been set — if you are asked to do something by the government and given every assurance and presented with hefty documentation that you are not being asked to do something illegal, then you’re not going to later be persecuted because someone disagrees with the government.
I happen to think that’s a fairly important thing. More important than thwarting Chimpy McHitler at any opportunity, any other consequences be damned.
