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from: Vox.com

Above the Law: AT&T, Verizon, BellSouth, and the Executive Branch

Jan 26, 2008 at 3:29 PM

The Bush Administration has been pushing hard for the Congress to grant retroactive immunity to telecom companies that cooperated with its domestic wiretapping program, the legality of which is still in question. For most Americans, this story falls in the category of boring, but important. Most aren't even aware that we're facing a Constitutional question that could fundamentally change the way we govern ourselves, and how we hold each other accountable.

A little history. In 2001, the NSA approached at least AT&T, Qwest, Verizon, and BellSouth, and requested their cooperation in installing wiretap capabilities to monitor all voice and data traffic on their networks, without a court order. As reported by James Risen and Eric Lichtblau of the New York Times, this is significant for a variety of reasons, which I don't have time to fully explore here. The important point is that the NSA apparently had no legal basis on which to request this cooperation. This point has not been substantively disputed or tested in court, and that's why the legality of the program is still in question.

The exact date in 2001 when this began is of some debate. The Administration has acknowledged that it sought this cooperation after September 11. On the other hand, former Qwest CEO Joseph P. Nacchio claims he was summoned to the NSA's headquarters in Fort Meade, MD, in February, 2001, just weeks after the Bush Administration took over, to discuss this program. Qwest refused to participate, citing the agency's lack of a warrant or other legal process.

(Nacchio made this claim while defending himself against insider trading charges, of which he was later convicted. He also claimed that the agency retaliated at his refusal to cooperate by denying Qwest lucrative contracts. As it happens, the "good guy" in this part of the story is so far the only one to have been convicted of a crime.)

As a business leader, I've been torn on how I feel about the issue of retroactive immunity. On the one hand, you could argue that a CEO shouldn't risk going to jail for responding in good faith to a request from the President of the United States. On the other hand, what happens if no one is actually checking whether or not the President's request is actually legal?

Given the ease with which we've seen the Bush Administration circumvent Constitutional checks and balances, I think we need to err on the side of more checks and balances, not fewer. Let me be clear: on this point, my problem is with the integrity of our our system of government, not with the Bush Administration in particular. Vice President Cheney in particular has been open on his attempts to increase Executive Branch power, as a matter of ideology, rather than a specific policy agenda.

For a refresher on how the Executive, Legislative, and Judicial branches are supposed to balance each other and limit each others' powers, please refer to your 8th grade civics textbook. (Except that apparently no one teaches civics to students anymore, which is another depressing and dangerous development.)

But that's not the central point. Now that this has all happened and has been publicized, the Administration is pushing hard to grant retroactive immunity to the companies that did cooperate without legal authority, in case it turns out that their cooperation violated the law.

I guess that's better than the alternative: after having secured their cooperation, if the Administration didn't come to their defense once it looked like various laws might have been broken, that would really put a damper on the Executive Branch's ability to request cooperation from private citizens in the future.

On the other hand, that's exactly why immunity is a terribly dangerous idea. The message it sends is that citizens are absolved of any responsibility to check the legality of an order that comes from the President. That even if the order is illegal, they are innocent conspirators simply because they were following orders.

Any student of history would tell you that this is a really, really bad idea.

Furthermore, obeying a secret order from the President is even more dangerous. It is well established that anonymity plus the color of authority is an extremely dangerous combination, and can cause even good people to do terrible things. Something happens where individual conscience is trumped by authority, especially when protected by anonymity. See the Stanley Milgram experiments, for one study, or Abu Grahib for a more recent example.

All of this leads me quite clearly to this conclusion. Granting immunity for potentially illegal cooperation with the President puts us in dangerous territory. I understand that these telecom executives may be innocent bystanders caught in a Constitutional struggle between the three Branches, but that doesn't excuse the fact that they didn't ask about the legal basis for the orders. Remember, Joseph Nacchio claims to have simply asked the question. Asking the question would not have been that hard. We can at least expect our CEOs to ask the question.

If this is about setting an example for the future, the message we need to send is that it is the responsibility of every citizen to ensure he is obeying the law, even when subject to a Presidential Order.

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Postscript: It looks as though the Congress is going to cave on this point. The Senate is advancing legislation that includes retroactive immunity.

I beg them to do the right thing: do not grant blanket retroactive immunity. If you must, out of humanitarian concern for the individuals, consider granting clemency or some form of Congressional pardon. Make it clear that this is a one-time thing, and that Congress does not intend to generally pardon future extra-legal cooperation with the President.

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Update: For an update on the current status of the broader issues of domestic surveillance, see the New York Times' editorial on the issue today.