The Bush administration wants the power to grant legal immunity to telecommunications companies that are slapped with privacy suits for cooperating with the White House's controversial warrantless eavesdropping program.
Republicans say immunity is necessary to protect the companies that responded to legal presidential orders to thwart terrorists in the years after 9/11.
The only purpose of this proposed legislation is amnesty for lawbreakers; if the presidential orders were legal the defendants will be found not guilty. We don't need immunity for people who didn't rob banks or didn't steal cars or didn't commit murder. Those people are already immune from guilty verdicts by virtue of not having committed an offense. The only possible parsing of the proposed legislation is that the telecom companies in question are guilty -- otherwise immunity is extraneous.
If the presidential orders were legal the telecoms and the Bush Administration should argue that in court -- something they have steadfastly refused to do by hiding behind states secrets privileges to avoid trial altogether. By now this should be a familiar tactic: make "legal" arguments everywhere but in a court of law, the one place where legal arguments are officially judged on their merits.
Bush Administration backers claim that the telecoms were simply following orders -- but following orders is not an excuse for illegal behavior. Neither is ignorance of the law, which is not a defense for average citizens let alone for corporations that employ armies of lawyers. If you take the Bush Administration claims at face value, that the telecoms are blameless because they merely followed orders, then the blame shifts (more) onto those issuing the orders. Yet the Bush Administration claims that those issuing the orders are guiltless as well.
Warrantless spying on US citizens is clearly illegal under the law, something Qwest lawyers understood:
Telecommunications giant Qwest refused to provide the government with access to telephone records of its 15 million customers after deciding the request violated privacy law, a lawyer for a former company executive said yesterday.
In a written statement, the attorney for former Qwest CEO Joseph Nacchio said the government approached the company in the fall of 2001 seeking access to the phone records of Qwest customers, with neither a warrant nor approval from a special court established to handle surveillance matters. [em. added]
Qwest did not break the law; other telecoms such as AT&T potentially did. The courts should determine guilt -- that is the purpose of the court system. Instead we are asked to accept the fact that while law-breaking occurred nobody is guilty. Not the people who issued illegal orders and not the people who followed them. Somehow, though we know exactly what transpired and who the participants were, the lawbreaking in un-attributable to anyone.
The subtext of the Bush Administration argument is a simple one: the law doesn't matter. Laws are merely inconveniences that get in the way of fighting evil and should be discarded at will. We may have issued illegal orders and AT&T may have followed them but we did it to protect you, or so we claim, so you should be grateful.
If the government can be trusted to work in the best interests of the people at all times then why bother having laws restricting government power in the first place? Of course we all know the answer: power corrupts. The Bush Administration is tacitly arguing that we should throw out this knowledge, the knowledge of our own history, and simply trust the government with unlimited power to use as it sees fit.