With Liberty and Justice for Some (8 page)

Indeed, as soon as the temporary six-month bill was passed in early August, the White House issued a statement unveiling, for the first time in public, a demand for full retroactive legal immunity—both criminal and civil—for all telecommunications companies that had participated in the warrantless eavesdropping program. The demand for telecom immunity was spelled out in the very first paragraph of the press release posted on the official White House Web site:

That same month, McConnell gave an interview in which he finally unveiled the real impetus behind his op-ed call for a “modernized” FISA bill. Like the White House press release, McConnell expressly stated for the first time in public that the new FISA bill must include retroactive immunity for telecoms that had participated in the administration’s illegal eavesdropping activities.

McConnell began by unintentionally providing an unusually clear and straightforward summary of federal law regarding eavesdropping on Americans by the U.S. government—unusually clear in that it highlighted how patently illegal Bush’s domestic spying activities had been. McConnell explained:

What McConnell euphemistically referred to as an “arrangement…worked out between the Congress and the administration” is what most people call a “federal law.” But McConnell’s basic point—that FISA required a warrant to conduct surveillance of Americans—was exactly correct. Despite that, McConnell now insisted that the bill he expected Congress to pass would vest full immunity in the administration’s “private partners” who had broken that law. The real goal of the new bill, he explained, was to force the termination of the lawsuits that were proceeding in court against the telecoms.

The government’s “terrorist surveillance program”—which McConnell also referred to as the “president’s program”—had needed a partner, and the private sector had come to its assistance. Now those partners were being sued, and if the lawsuits were allowed to go forward, McConnell said, they would “bankrupt” those companies. McConnell’s suggested remedy was simple: “We have to provide liability protection to these private sector entities.” Bush’s DNI acknowledged that the idea had been on the administration’s mind for a while and had encountered some resistance: “When I went through and briefed the various senators and congressmen, the issue was alright, look, we don’t want to work that right now, it’s too hard because we want to find out about some issues of the past.” But now the time had come, McConnell said: “The retroactive liability protection has got to be addressed.”

It is hard to imagine open contempt for the rule of law being expressed more explicitly than this. What possible reason is there to protect anyone—let alone the nation’s largest, richest, and most powerful telecom companies—with a special law enacted to declare that they are relieved of all accountability for illegal behavior? Ordinary individuals and small companies are routinely confronted with lawsuits that could bankrupt them, yet Congress does nothing to intervene or protect them. The theory of our justice system is that any person or corporation that breaks the law is obliged to pay for the resulting damages, even if—
especially if
—those damages are substantial.

The underlying premise of McConnell’s demand for immunity was even more dangerous than his conclusion. The argument was grounded in the claim that these companies were only acting at the behest of George W. Bush—carrying out “the President’s program”—and therefore were entitled, even obligated, to do what they did. In other words, to hear McConnell tell it, the president has the power not only to violate the law at will but also to authorize or even order private actors to break the law—who then have no choice but to submit. And when those illegal orders are obeyed, the private actors are to be immune from the consequences of their lawbreaking because they acted at the president’s behest.

Retroactive immunity makes complete mockery of the rule of law. The United States is not supposed to be a country where private actors are permitted to commit crimes and violate laws whenever the president tells them that they should. The president has no greater power to authorize others to break the law than he does to break the law himself. On the contrary, Article II of the Constitution, which defines the powers of the executive, imposes the exact opposite obligation: “He shall take Care that the Laws be faithfully executed.” Lawbreaking is still illegal even if the president says it should be done.

It is also no minor matter that immunizing telecom corporations would effectively prevent any official ruling on the question of whether the president himself committed crimes in his insistence on warrantless wiretapping. The White House was so eager to secure immunity not only because of the benefits it would confer on their industry “partners,” but because of this crucial self-protective benefit as well. Terminating lawsuits against the telecoms by retroactively granting them immunity would forever shield the actions of the president and the telecom industry alike from judicial review—that is, from the rule of law.

Admiral Michael McConnell: The Face of Private Sector Immunity

It was both important and revealing, though not at all surprising, that the man who led the crusade for retroactive amnesty for the telecoms was Michael McConnell. In many ways, he is the living, breathing embodiment of the decadent political culture that reigns among America’s most powerful.

Even in a political culture drowning in conflicts of interest, McConnell stands out. Few people have blurred the line between public office and private profit more egregiously and shamelessly than he. McConnell’s career is the classic illustration of the “revolving door” syndrome: public officials serve private interests while in office and are then lavishly rewarded by those same interests once they leave. He went from being head of the National Security Agency under Bush 41 and Clinton directly to Booz Allen, one of the nation’s largest private intelligence contractors, then became Bush 43’s director of national intelligence, then went back to Booz Allen, where he is now executive vice president.

But that’s the least of what makes McConnell such a perfect symbol for the legalized corruption that dominates Washington. More important, his overarching project while at Booz Allen and in public office was exactly the same: the outsourcing of the American government’s intelligence and surveillance functions (including domestic surveillance) to private corporations, where those activities are even less subject to oversight than they are as part of government operations, and where they generate massive profit for the corporations at the public expense.

Accelerating the merger between the private and public spheres is the cause to which McConnell devoted himself for decades, both in and out of government. While at Booz Allen, McConnell was chairman of the Intelligence and National Security Alliance, the primary business association of NSA and CIA contractors devoted to expanding the privatization of government intelligence functions. Then, as Bush’s DNI, McConnell dramatically expanded the extent to which intelligence functions were outsourced to the same private industry that he long represented. Worse, he became the government’s leading advocate for giving full immunity to the telecoms. In other words, as DNI he worked to win the dismissal of lawsuits against the very industry he had represented as INSA chairman. Once the Bush administration ended, McConnell returned to Booz Allen’s loving arms, where he resumed his work on behalf of the private intelligence industry.

It’s vital to understand how this process truly works. People like Mike McConnell don’t really move from public office to the private sector and back again; that implies more separation than actually exists. Rather, the U.S. government and industry interests essentially form one gigantic, amalgamated, inseparable entity—with a public division and a private one. When someone like McConnell goes from a top private sector position to a top government post in the same field, it’s more like an intracorporate reassignment than it is like changing employers. When McConnell serves as DNI he’s simply in one division of this entity, and when he’s at Booz Allen he is in another. It’s precisely the same way that Goldman Sachs officials endlessly move in and out of the Treasury Department and other government positions with financial authority, or the way that health care and oil executives move in and out of government agencies charged with regulating those fields.

In every way that matters, the separation between government and corporations is nonexistent, and this is especially true when it comes to national security and the surveillance state. Indeed, so extreme is this overlap that McConnell, when he was nominated to be Bush’s DNI, told the
New York Times
that his ten years of working for Booz Allen would not impede his ability to run the nation’s intelligence functions. That’s because his Booz Allen work was indistinguishable from working for the government. As McConnell himself put it, “In many respects, I never left the business.”

The NSA scandal made it clear that private telecom giants had come to occupy a central role in carrying out the government’s domestic surveillance and intelligence activities—almost always in the shadows, beyond the reach of oversight or the law. Just how central a part they played was revealed in October 2007 by documents made public as part of the criminal prosecution of Joseph Nacchio, the former CEO of the telecom giant Qwest, for insider trading. Under Nacchio’s leadership, Qwest had steadfastly refused to participate in the surveillance programs of the Bush administration; now, Nacchio was accused by Bush’s DOJ of selling his Qwest shares based on nonpublic knowledge that the company was about to lose substantial value. To defend himself, Nacchio was attempting to prove that, at the time he sold his shares, he actually anticipated the opposite: a rise in Qwest’s value, based on highly lucrative government contracts that the company expected to receive. Notably, these contracts were being negotiated almost immediately upon Bush’s inauguration in 2001—months before the 9/11 attacks.

To prove his case, Nacchio submitted voluminous documentation detailing the vast number of projects that the Bush administration was pursuing jointly with the telecom industry. (The Clinton administration had engaged in similar projects, though to a lesser extent.) The documents revealed an extraordinary degree of cooperation between the various military and intelligence branches of the federal government—particularly the Pentagon and the NSA—and the private telecommunications corporations. The federal government had its hands deep in the ostensibly “private” telecommunications infrastructure, while the nation’s telecoms—in exchange for huge revenues—had dedicated themselves to carrying out most of the state’s surveillance functions.

Nacchio’s documents show that telecom corporations and the military and intelligence agencies of the federal government were so close as to be virtually indistinguishable. They met and planned and agreed so frequently, and at such high levels, that they essentially formed a consortium. Just in Nacchio’s limited and redacted disclosures there were descriptions of numerous pre-9/11 meetings between the largest telecoms and multiple Bush national security officials, including Paul Wolfowitz, Condoleezza Rice, NSA director general Michael Hayden, and the counterterrorism adviser Richard Clarke. State secrets posed no obstacle to this cooperation: the top telecom officials were devoting substantial amounts of their energy to working with the Bush administration on highly classified telecom projects, including plans to develop whole new joint surveillance networks with unlimited governmental access.

At the center of this private/public convergence stood Mike McConnell. As Tim Shorrock documented in his definitive 2007
Salon
investigative article on the relationship between McConnell, Booz Allen, and the intelligence community, Booz Allen employed more than ten thousand individuals with “top secret” clearance and was thus “one of the largest employers of cleared personnel in the United States.” Among those on Booz Allen’s payroll were James Woolsey, a former CIA director and a neoconservative extremist; Joan Dempsey, former chief of staff to CIA director; George Tenet and Keith Hall, a former director of the National Reconnaissance Office, the supersecret organization that oversees the nation’s spy satellites. As Shorrock noted, “Under McConnell’s watch, Booz Allen has been deeply involved in some of the most controversial counterterrorism programs the Bush administration has run, including the infamous Total Information Awareness data-mining scheme” and “is almost certainly participating in the agency’s warrantless surveillance of the telephone calls and e-mails of American citizens.”

Aside from the general dangers of vesting government power in private corporations, all of this is big business on an astonishing scale. The attacks of 9/11 greatly increased the already-huge (and secret) intelligence budget. Shorrock estimated that “about 50 percent of this spending goes directly to private companies” and that “spending on intelligence since 2002 is much higher than the total of $33 billion the Bush administration paid to Bechtel, Halliburton and other large corporations for reconstruction projects in Iraq.”