With Liberty and Justice for Some (9 page)

To sum up: McConnell left a career in government to go profit from the private telecom industry. Then he returned to government, where he devoted himself to protecting and shielding that industry from any accountability. Once the Bush administration ended, McConnell went back directly to his lucrative position at Booz Allen, where he advocates for massive expansions of surveillance policies—such as increased, joint government/corporate control over the Internet in the name of fighting “cyber wars”—from which his firm and its clients would profit greatly.

This is the toxic pattern that leads government officials to try to shield not only themselves but their most favored private corporations from any consequences for what they do, no matter how legally dubious.

Lawbreaking Studiously Ignored

When McConnell first publicly demanded full immunity for the telecom industry he served, it seemed implausible in the extreme that it would actually happen. Even highly cynical observers (such as myself) who had been working extensively on these issues for several years did not expect his brazen efforts to succeed. For a Democratic-controlled Congress, which claimed to be offended by Bush’s illegal spying, to grant retroactive immunity to the entire telecom industry after it had spent years breaking the law and invading the privacy of Americans—it just seemed a bridge too far, even for the culture of impunity that reigns in Washington.

After all, leading Democrats in Congress were expressing righteous outrage not only about the illegal spying but also about how little they were being told regarding what the program entailed and about how contemptuously Bush officials were stonewalling their investigations. In September 2006—two months before Democrats won control of Congress—the then–ranking member of the Senate Intelligence Committee, Jay Rockefeller, made clear in a letter to the White House how little even he knew about the most basic elements of the NSA spying program.

The problem for McConnell wasn’t merely that Congress was in the dark about what the eavesdropping program entailed. A potentially even greater obstacle was that it had become indisputably clear that, even using the right-wing DOJ’s view of the law, the Bush administration’s spying on Americans had been blatantly illegal. Indeed, Congress and the nation would soon learn that at one point, the wiretapping had been so shockingly lawless that even Bush’s own top DOJ officials had revolted when they learned of it.

In May 2007, James Comey—Bush’s deputy attorney general in 2003 and 2004—testified about the NSA program before the Senate Judiciary Committee. (Bush’s attorney general, Alberto Gonzales, had spent two years working to block Comey from testifying, but once Democrats gained control of the Senate they were finally able to compel his appearance.) Comey reported that shortly after he became deputy attorney general, he reviewed the warrantless NSA spying program Bush had ordered back in 2001 and concluded that it was patently illegal. As a result, Comey refused to sign a DOJ certification attesting to the program’s legality, a certification which was required every forty-five days under Bush’s original executive order that implemented the program.

When the new DOJ certification was due, Attorney General John Ashcroft was in the hospital recovering from serious gallbladder surgery. Before entering the hospital, he had transferred the powers of attorney general to his deputy. Comey’s refusal to certify the legality of the NSA program thus left the Bush administration without legal cover. After all, the second-highest ranking DOJ official was insisting that their actions broke the law, and had told White House officials that Ashcroft—who had previously signed off on the program—now agreed with his assessment.

The aspect of Comey’s testimony that received the most media attention was his dramatic tale—later confirmed by all parties—of how President Bush sent Gonzales and Chief of Staff Andrew Card to Ashcroft’s hospital room, where Ashcroft was barely lucid, in order to induce him to sign off on the program. Upon hearing that the president had dispatched his two aides on this mission, Comey rushed to the hospital, explaining that he did not trust Gonzales and Card to be alone in the room with Ashcroft. Indeed, so distrustful were Comey and FBI director Robert Mueller of the lengths to which Gonzales and Card might go in order to extract Ashcroft’s signature that, Comey explained, “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.”

Comey arrived at the hospital immediately before Gonzales and Card. When the two White House officials entered the room and demanded that Ashcroft certify the legality of the NSA program, the attorney general lifted his head from his pillow and announced that he refused to override Comey’s judgment. Though he was clearly mentally and physically impaired—Comey said he had “witnessed an effort to take advantage of a very sick man”—Ashcroft informed Gonzales and Card that he agreed with Comey that the spying program was illegal, and that, in any event, it was Comey’s call to make.

The media’s fixation on this hospital melodrama obscured the substance of Comey’s monumentally important revelations. Hearing from his own Justice Department that his spying program was in violation of criminal law did not faze Bush. Instead, vividly demonstrating his complete indifference to the rule of law and his confidence that he was free to violate it at will, Bush ordered the NSA spying program to go on even in the face of the emphatic conclusion of his own top DOJ appointees that it was illegal.

In response, Comey and the entire top level of Bush’s Justice Department team—including Ashcroft, FBI director Mueller, and Jack Goldsmith, the newly appointed chief of the Office of Legal Counsel—threatened to resign en masse unless Bush immediately put an end to the unlawful spying. This was in March of 2004, the year Bush was running for reelection, and he concluded that he could not afford to suffer a public scandal of that magnitude. As a result, though he refused to terminate the program completely, Bush agreed to “refashion” it so as to pacify Comey, Ashcroft, and the others.

A month later, these rebelling DOJ officials signed off on Bush’s newly “refashioned” program. And it was this “modified” approach that the
New York Times
exposed in December 2005 to such great controversy.

To date, we still don’t know what the original program entailed. In 2007, Marty Lederman, then a Georgetown law professor, asked in a piece titled “Can You Even Imagine How Bad It Must Have Been?”: “Just how radical were the Administration’s legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?” Given that the DOJ protesters were eventually willing to endorse the spying program that the
New York Times
reported on, the activities that almost prompted their resignation must have been illegal in the extreme.

Such shocking revelations made even the most cynical civil libertarians doubtful that McConnell’s mid-2007 demands for a new FISA law that would legalize Bush’s program and grant retroactive immunity to the telecoms would ever be fulfilled. How could Congress, controlled by the ostensibly “opposition” Democratic Party, possibly whitewash the years of criminal spying on American citizens by legalizing it all and then retroactively immunizing the criminals?

But in our culture of lawlessness, there is no such thing as too much cynicism. Sure enough, on September 19, 2007, there appeared in the
New York Times
an article by James Risen on a variety of surveillance issues. Buried toward the end was the following passage, strongly suggesting that congressional Democrats were indeed ready, as always, to do as they were told.

This anonymously leaked announcement came with little warning and was initially confounding. Even leaving aside righteous considerations of the rule of law and the like, why would Democrats want to help bury a potentially costly Republican crime scandal as they headed into an election year?

Immunity for Sale, Telecoms Buying

The answer—which should have been obvious from the start—quickly became clear: Democrats were being deluged with massive amounts of money and other forms of corporate largesse from the telecom industry in exchange for supporting full-scale retroactive immunity, which the telecoms viewed as particularly necessary given that the customer lawsuits against them were rapidly advancing through the courts. In September,
Newsweek
’s Michael Isikoff and Mark Hosenball reported: “Congressional staffers said this week that some version of the [telecom immunity] proposal is likely to pass—in part because of a high-pressure lobbying campaign warning of dire consequences if the lawsuits proceed.”

The
Newsweek
reporters detailed a “secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits” against the telecoms. The campaign was being waged by “the nation’s biggest telecommunications companies, working closely with the White House.” Isikoff and Hosenball made clear that the drive for immunity was fueled by the likelihood of more losses for the telecoms in America’s courts of law: immunity, they wrote, had “taken on new urgency in recent weeks because of fears that a U.S. appellate court in San Francisco is poised to rule that the lawsuits should be allowed to proceed.”

The
Newsweek
reporters further revealed that the lobbyist army deployed by the telecom industry was fully bipartisan. It included leading former GOP officials, such as Bush 41 attorney general William Barr, then serving as Verizon’s general counsel; Brad Berenson, a former assistant White House counsel under Bush 43, on behalf of AT&T; and former (and now again current) GOP senator Dan Coats on behalf of Sprint. Also toiling for the telecoms were former high-level Democratic officials, such as the Clinton deputy attorney general Jamie Gorelick and the Clinton State Department official (and current national security adviser to Obama) Tom Donilon, both on behalf of Verizon. Many of the most powerful lobbyists in Washington—former officials from both political parties—were thus using their relationships with current political officials to help extract retroactive immunity for the telecom giants and getting paid quite well for the influence peddling.

Lobbyist disclosure statements revealed that just in the first three months of 2008, AT&T spent $5.2 million on lobbyist fees (putting it well ahead of its 2007 pace, when it spent about $17 million for the entire year). In the same first quarter of 2008, Verizon spent $4.8 million on lobbyist fees, and Comcast spent $2.6 million. In only ninety days, as the telecom immunity debate raged, those three corporations—which were to be among the biggest beneficiaries of telecom amnesty—spent a combined total of almost $13 million just on lobbyists, leaving aside campaign donations and other means of influencing the lawmaking process. Had the telecom battle lasted through the end of 2008, those three telecoms alone were on pace to spend more than $50 million on lobbying for the year.

Also revealing are the specific lobbying arrangements these telecoms had constructed for influencing how FISA was rewritten. AT&T, for instance, paid $120,000 in the first three months of 2008 to the lobbying firm BSKH & Associates—a firm which counts Charlie Black, the top campaign adviser to John McCain in 2008, as a founding partner. According to BSKH’s lobbyist disclosure form, Black himself, at the same time that he was advising McCain, was one of the individuals paid by AT&T to lobby Congress on FISA. McCain, needless to say, became a vocal proponent for telecom immunity.

On the other side of the aisle, the “Blue Dogs,” a powerful faction within the Democratic Party at the time, became instrumental in demanding that their party enact telecom immunity. In early 2008, twenty-one members of that caucus wrote a public letter to Speaker Nancy Pelosi demanding amnesty for the telecoms.

A major factor in getting them to take this position was the influence of the C2 Group—a lobbying firm that includes Jeff Murray, former chief of staff to Blue Dog congressional representative Bud Cramer of Alabama, and Robert Van Heuvelen, former chief of staff to Democratic senator Kent Conrad of North Dakota. Comcast paid the C2 Group $90,000 for its efforts in the first three months of 2008 and more than $300,000 in 2007. It was money well spent. C2 has extraordinary access to and influence over the Blue Dog coalition, which it proudly touts in an article prominently posted on its Web site.