With Liberty and Justice for Some (7 page)

But the rest of the telecom industry had no such qualms about FISA. In fact, the government even attempted to pressure Qwest by telling the firm that “it was the lone holdout among the big telecommunications companies.” Most telecoms had readily agreed to cooperate fully with the government’s illegal program, lured by the mammoth profits to be earned from the growing surveillance state. To induce Qwest to capitulate, Bush officials threatened it with the possibility of losing government contracts. As
USA Today
explained: “In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.”

As the Qwest case demonstrates, telecoms had the option to refuse to participate in the NSA program and thus abide by the law. Yet most of them chose not to. The evidence seems clear that virtually the entire American telecom industry—AT&T, Sprint, Verizon, BellSouth, and numerous others—broke the law by allowing the U.S. government to invade their customers’ private communications without the warrants required by the federal statutes that the telecoms themselves had actively participated in writing. And it is not insignificant that their actions generated hundreds of millions of dollars in government surveillance contracts.

When the NSA program was revealed, the telecoms’ customers, represented by nonprofit groups such as the Electronic Frontier Foundation and the American Civil Liberties Union, sued these firms for enabling the government to spy on their phone calls and e-mails without warrants. Suing the telecoms was particularly important because the Bush administration had succeeded in blocking the eavesdropping-related suits that had been brought directly against the government—even though all three federal judges who had considered the legal issues had concluded that the NSA program broke the law. (To get the lawsuits against the government dismissed, the Bush Justice Department argued that the eavesdropping program was a state secret and therefore could not be evaluated by the courts; it also maintained that since no specific individual could prove that he or she had been spied upon by the secret program, no one had legal standing to sue the administration.) Suing the telecoms was thus the only way for American citizens to learn the central facts about what the spying program entailed: Which citizens were targeted? How many? How were they selected? With lawsuits against the government blocked, the telecom suits were also the only means for obtaining an official court ruling on whether Bush’s warrantless spying program was illegal.

From the start, the telecom cases were a classic David-versus-Goliath battle. The plaintiffs were ordinary, powerless Americans: customers of the telecoms whose e-mail records and telephone conversations had been turned over to the Bush administration without warrants. Their lawyers came from the EFF, a small nonprofit organization with a tiny budget. By stark contrast, the defendants were all telecom giants, represented by armies of the nation’s most expensive law firms. Nonetheless, as the lawsuits proceeded, courts began ruling against the telecoms.

In one of the most important developments, in July 2006 the federal judge Vaughn Walker refused to dismiss the lawsuits brought against AT&T by its customers. AT&T had cited FISA’s immunity provisions as a ground for dismissal, but Judge Walker rejected that argument, ruling that the conduct in which the telecoms were accused of engaging was so clearly illegal that they could not hide behind the immunity provisions provided by law. Judge Walker wrote that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

But in the United States, the most powerful corporations need not fear when they break the law or even when courts begin to rule against them. They can simply have the law changed—even retroactively—by the Congress which they own. Once they began losing in court, that is exactly what the telecom industry proceeded to do: it flooded the coffers of key members of Congress with money, deployed a veritable army of the highest-paid and most politically well-connected lobbyists from both parties, and began demanding that Congress block courts from ruling on their conduct and retroactively immunize them from any consequences for their lawbreaking.

Elites Conspire to Protect their Own

It is difficult to overstate the extent to which congressionally bestowed retroactive immunity represents a profound departure from basic norms of justice. Ordinary Americans are sued every day and forced to endure the severe hardships and sometimes ruinous costs of litigation. When that happens, it is the role of the courts alone to determine who is at fault and whether liability should be imposed. The Constitution vests “the judicial Power of the United States” in courts, not Congress. And when it comes to lawsuits brought against ordinary Americans, that is how such suits are always resolved: by courts issuing rulings on the merits. The very idea that Congress would intervene in such proceedings and act to protect ordinary Americans from lawsuits is too outlandish even to entertain.

But when the wealthiest, most powerful, and most well-connected financial elites are caught red-handed violating the privacy rights of their customers and committing clear felonies, their lobbyists call for a new law that has no purpose other than to declare that the old laws do not apply to them. That is the living, breathing embodiment of our two-tiered justice system—a lawless Wild West for elites in which anything goes. Examining how the telecoms pursued the amazing feat of getting full immunity for their systematic lawbreaking highlights how and why the rule of law is so easily discarded in the United States.

The very idea of
retroactive immunity
for lawbreaking corporations is so antithetical to the most basic principles of the rule of law that I have been able to find only one other such attempt in recent history. That case involved the efforts by some in Congress in 1965 to enact a law retroactively legalizing the mergers of six large banks—mergers which, as a federal court found, were clearly illegal under antitrust laws.

The banks knew when they merged that they were almost certainly violating antitrust regulations. But they did it anyway, assuming that once the mergers were effectuated it would be impossible to undo them. And when, postmerger, courts began ruling that their behavior was indeed illegal, the banks ran to Congress to demand that a law be passed granting them amnesty, claiming that the consequences would be ruinous if they were held accountable under the law.

In 1965, this brazen demand met with stiff resistance. Senator Robert Kennedy pointed out that if retroactive immunity were granted to the banks, it might equally well be applied to “murder or any other crime.” And Attorney General Nicholas Katzenbach was equally appalled. An August 22, 1965, article in the
New York Times
described his response as “one of the most sternly-worded statements ever delivered by a Cabinet-rank official.” The attorney general denounced as “outrageous” the very idea that Congress might retroactively immunize clearly illegal corporate behavior, and condemned the proposal as “nothing more or less than a private relief bill for the banks” that “can in no way be justified.” Such fervent objections had their effect. While disentangling the illegally merged banks ultimately proved to be impossible from a practical standpoint, the opposition did succeed in imposing substantial limits on the banks’ ability to act anticompetitively.

Kennedy and Katzenbach stood up eloquently and aggressively for the rule of law—even when the nation’s wealthiest bankers claimed that undoing their mergers would cripple the economy—but our political class today is bound by no such principles. Instead, leading Democratic members of Congress spent months in secret discussions with Dick Cheney, looking for ways to protect lawbreaking telecoms from the court battles that they were losing, and trying to save the telecoms from the consequences of their criminal conduct. That steeply downward fall—from Robert Kennedy and his emphatic insistence on equality under the law to the Cheney/Democratic telecom amnesty scheme—illustrates much about what has happened to our country and its rule of law.

The public campaign for retroactive telecom immunity relied on two main arguments. On one hand, there was the familiar fearmongering about terrorism: the idea that if we do not immunize them, telecoms might no longer cooperate with the government’s eavesdropping programs and we will thus be unable to detect terrorist plots. At the same time, immunity advocates proclaimed that the telecoms had been motivated only by feelings of patriotic duty to the nation and should therefore not be punished for their actions.

Both of those claims were patently false. Telecoms are already required by law to assist the government with any legal requests for eavesdropping (that is, requests accompanied by a judicial warrant) and thus do not have the option to refuse to cooperate. And whatever the claims to patriotism by the telecoms, their cooperation resulted in massive profits. (Of course, breaking the law is not permitted even if patriotic motives are involved.) But none of that mattered much. So absolute was the telecoms’ control over Congress and the lawmaking process that their success was virtually a fait accompli as soon as they decided that they wanted retroactive immunity.

The first public move made by immunity advocates came in the form of an op-ed published in the
Washington Post
on May 21, 2007, by Bush’s director of national intelligence (DNI), Admiral Michael McConnell. It was a stealthy opening to the campaign. McConnell said nothing about immunity, focusing instead on an apparently unrelated matter: he repeatedly called for wholly unspecified “updates” and “changes” to FISA that would expand the government’s powers of eavesdropping on Americans.

But McConnell’s central argument—that such updates were needed because FISA had “not been changed to reflect technological advancements” since its original enactment—was a red herring. FISA had been changed numerous times for exactly that purpose, including shortly after the 9/11 attacks, when Congress agreed to every expansion and modernization of FISA powers requested by the Bush administration. Indeed, on signing the post-9/11 updates to FISA into law, Bush told the nation:

The fact that McConnell’s op-ed called for revisions to FISA based on a patently false claim indicated that the true reasons why the Bush administration wanted a new eavesdropping law were not yet on view. But these reasons would not remain hidden for very long.

In July 2007, Bush officials followed up on McConnell’s op-ed by proclaiming that there was an emergency need to revise FISA because its scope was too limited and because the eavesdropping authorizations on which they were relying were set to expire. The claims were dubious at best, but they had their effect. As the
Washington Post
reported, McConnell and other Bush officials secretly met with leading Democrats and warned them that failure to enact the revisions proposed by the White House—and to do so by the very fast deadline the White House had imposed—could prevent the administration from protecting the Capitol from serious terrorist plots, plots which intelligence agencies had been recently picking up in vague “chatter.” The new bill the Bush administration wanted would drastically expand eavesdropping powers and allow spy agencies to act without a warrant, thus essentially legalizing the program that had been exposed by the
New York Times
.

The demand that the Democratic-led Congress enact a statute vesting the administration with increased eavesdropping powers was audacious indeed; after all, Democrats had spent months complaining that their efforts to learn about the Bush NSA program had been completely stonewalled. In other words, Democrats were being told to legalize and expand an eavesdropping program that had been carried out illegally for years and that they knew virtually nothing about. What’s more, they were being pressed to do so in such a rapid timeframe, and under the specter of such grave warnings, that they barely had time even to learn what exactly they were supposed to approve.

But as they always did whenever the Bush administration invoked terrorism, the Democratic Congress quickly and meekly obeyed. At 10:00 p.m. on Saturday, August 4, 2007 (the day after Congress was scheduled to begin its summer recess), with virtually no debate, and with most of the caucus having little idea what they were voting on, they passed an “emergency” eavesdropping bill. Oh-so-subtly christened the Protect America Act, the bill essentially legitimized the president’s warrantless spying program. The only concession to the fact that the Democrats had enacted the new law with such haste—Senator Chris Dodd told me in an interview the day after the vote that senators had no idea why the new provisions were warranted but were “not secure enough in their own beliefs” to object—was a “sunset” provision they inserted into the bill, which called for the new regulations to expire in six months. The plan was that the six-month period would give Congress time to craft a new, permanent eavesdropping bill that would be considered in a more deliberative manner.

The hurried FISA revision accomplished one of the Bush administration’s goals: eliminating the need for warrants for future eavesdropping. But what about the liability of the telecoms who had illegally helped them over the previous years? It was later reported by numerous Senate sources that during the  frenzied campaign of pressure, the Bush administration had several times raised the issue of immunity for telecoms, but there was simply too little time for it to be drafted and included in the new bill. The White House made clear to congressional Democrats, however, that inclusion of telecom immunity in the permanent eavesdropping bill would be a nonnegotiable condition.