Why Immunity Matters

By Dan Froomkin
Special to washingtonpost.com
Monday, March 3, 2008; 12:49 PM

When he's talking extemporaneously, President Bush's rhetoric on the issue of retroactive immunity for telecommunications companies that cooperated with his warrantless wiretapping program tends toward the simplistic and argumentative.

"We want to know who's calling who," he said at last week's press conference, emphasizing his words by thumping the lectern. "We need to know in order to protect the people."

No one, of course, is arguing the contrary. The debate is over how to go about it. And the major sticking point in the current congressional tussle over surveillance legislation is about immunity: Whether the telephone and Internet companies that for years let the government spy on their customers without a warrant should be protected from civil lawsuits alleging that they violated federal law in doing so.

And indeed, beyond the hyperbole, the Bush administration is articulating a more measured, three-part argument for immunity, based on concerns about fairness, secrecy and future cooperation.

It just so happens that all three parts of this argument are flawed.

The Three Reasons

Bush himself laid out the three reasons immunity is non-negotiable in some unusually specific remarks last Monday:

"One, it's not fair. Our government told them that their participation was necessary, and it was -- and still is -- and that what we had asked them to do was legal. And now they're getting sued for billions of dollars -- and it's not fair, and it will create doubt amongst private sector folks who we need to help protect us," he said.

"Secondly, such lawsuits would require disclosure of information, which will make it harder to protect the country. You can imagine when people start defending themselves, they're going to be asked all kinds of questions about tactics used. Makes absolutely no sense to give the enemy more knowledge about what the United States is doing to protect the American people.

"Finally, it'll make it harder to convince companies to participate in the future. I mean, if you've done something that you think is perfectly legal and all of a sudden you're facing billions of dollars of lawsuits, it's going to be hard to provide -- with credibility -- assurances that we can go forward."

Let's take them one at a time, in order.

On Fairness

Bush on Thursday argued that the telecommunications companies shouldn't be punished for patriotically carrying out legal orders. And he characterized the lawsuits as being the product of "class-action plaintiffs attorneys, [who] you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train."

The Washington Post put Bush's claim in context on Friday: "Two nonprofit groups are overseeing [the five coordinated, class-action lawsuits pending against the phone companies]: the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union of Illinois." The Post also noted that "substantial damages would be awarded only if courts rule that they participated in illegal surveillance affecting millions of people, not just communications involving terrorism suspects overseas."

Even if the orders were illegal and the telecoms broke the law, however, is this really their battle? At Tuesday's briefing, an anonymous senior Justice Department official argued that they shouldn't be caught in the middle of a separation-of-powers argument: "[T]he issue, though, is whether in this heated disagreement between the President and some members of Congress about the scope of people's powers under the Constitution -- the scope of the President's national security powers, the ability of Congress to pass certain statutes -- whether private parties are going to be the way to play that out, and essentially, while our intelligence capabilities continue to degrade, is that how we're going to settle those issues, many of which have gone on for over 200 years?"

Indeed: Why hasn't this issue been explored elsewhere -- say in congressional hearings, or criminal cases? The short answer: A lot of the same Democrats who would have called these hearings timorously acquiesced to the program when they were informed about it in secret briefings years ago. So they've been co-opted. And Bush's own Department of Justice isn't going to sue itself.

As a result, the telecom lawsuits are the only remaining avenue the public has -- at least until the next administration to find out what was done in their name. And immunity would be the final touch to the administration's stone wall.

On Secrecy

Terrorists everywhere had plenty of reason to believe that the United States was trying to spy on their electronic communications long before the New York Times broke the story of Bush's warrantless wiretapping program in December 2005.

What was new about the program was not some sort of tactical or technological breakthrough that the terrorists could overcome once alerted to its existence. What was new about the program was that it was arguably in violation of the Foreign Intelligence Surveillance Act, which forbids any form of domestic wiretapping without a warrant.

Whether the government was listening in on their calls legally or not was not material to the terrorists -- but it's hugely relevant to any American who cares about the rule of law.

So what is Bush so worried about? Yes, information about how, when and against whom the wiretaps were carried out could potentially help terrorists to more effectively cover their tracks -- but the courts have a proven record of being able to keep such information secret, even while allowing a trial on the overarching issues to proceed.

As Dan Eggen and Ellen Nakashima write in Sunday's Washington Post: "If the cases are allowed to proceed, plaintiffs' attorneys say, the courts could review, in secret if necessary, any government authorizations for the surveillance. The process also might force the disclosure of government memos, contracts and other documents to a judge, outlining the legal reasoning behind the warrantless wiretapping program.

"Perhaps most important, disclosures in the lawsuits could clarify the scope of the government's surveillance and establish whether, as the plaintiffs allege, it involved the massive interception of purely domestic communications with the help of the nation's largest providers. . . .

"'I think the administration would be very loath for folks to realize that ordinary people were being surveilled,' said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which brought the lead lawsuit, against AT&T."

Given Bush's track record at trying to keep information that would embarrass him from the public, it's reasonable to suspect that the administration's main goal here is not to keep the program secret from terrorists -- but to keep it secret from us.

On Future Cooperation

Bush has been particularly insistent that failure to grant retroactive immunity would have grave consequences going forward. Here's what he told reporters on his way back from Africa on Feb. 21: "If we do not give liability protection to those who are helping us, they won't help us. And if they don't help us, there will be no program. And if there's no program, America is more vulnerable."

But why would lawsuits over past actions have any effect on telecoms following lawful directives from this point forward?

Here's how that senior Justice Department official explained it at a White House briefing last week: "We have to work with them. And, yes, we can compel them to assist us through various court orders or directives. But I know as a prosecutor working criminal cases, trying to get telephone records, there's some companies that work well with you and you get them in a day, and you can -- that will help you to run down the bad guy more quickly. Others will take the full two weeks. And so there's cooperation, and there's cooperation.

"Also, keep in mind that, yes, the providers, if they want to, they can litigate everything we give them. They have the right under the PAA -- the Protect America Act -- to go ahead and challenge these directives, and that's within their right to do so. And at the end of the day, we might prevail -- we will prevail because we have the authority to do it. But during the time that that's being litigated, the surveillance we're asking them to do is not happening. . . .

"So don't underestimate -- because there's no immunity, the providers are understandably concerned. They've got shareholders, they've got fiduciary duties to their shareholders, they've got to protect them. And one thing the general counsels do is then they try to minimize their risk. And they do that by, sometimes, litigating things more just to make sure that they've got a court order to cover them at every step of the way. And that will really slow us down."

But the telecoms can't possibly be worried about prospective immunity for following lawful orders -- that's already part of the agreed-upon legislation.

So are they actually telling the government: Unless you get us off the hook for billions in potential damages based on our past actions, we won't follow the law -- or we'll do so, but only kicking and screaming. That doesn't sound like a legitimate reason to help them out. In fact, it sounds like extortion.

Or are they simply saying that without retroactive immunity, they'll feel a greater need to be absolutely sure that what they're doing is legal? If that's the case, that sounds like a good thing. Any company being asked to do something by the government that they have plausible reason to believe is illegal should push back. Otherwise, there are no checks and balances at work. We call that a police state.

Another possibility, I suppose, is that the telecoms are balking about doing things that we don't even know about -- and are worried that they could be sued once we find out.

At any rate, none of these points argue for retroactive immunity.

The Latest

Eggen and Nakashima's piece in Sunday's Post points out: "A prime goal in the litigation is to find out who the decision-makers were, said Don Migliori, a partner with Motley Rice in Providence, R.I., a plaintiffs' attorney who is working on the lawsuit against Verizon. The plaintiffs intend to request not just government documents but also e-mails, including who contacted whom and when. . . .

"Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?

"Answers to those questions, he said, might reveal that 'everybody in the country' has had their phone calls 'combed through, and lots of people will be outraged.' . . .

"If the AT&T case is allowed to proceed, for example, the plaintiffs will ask a judge to consider documents provided by a former AT&T technician, Mark Klein, that suggest a massive effort by the National Security Agency to tap into the backbone of the Internet to retrieve millions of e-mails and other exclusively domestic communications."

Eric Lichtblau writes in the New York Times: "The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials."

Washington Monthly blogger Kevin Drum wonders if one reason the telecoms themselves aren't fighting all that hard on behalf of this legislation might be because they've all got indemnity agreements that would force the federal government to pay any legal judgments awarded against them.

Studs Terkel, Quentin Young, Barbara Flynn Currie and James Montgomery, plaintiffs in one of the lawsuits, write in a Chicago Tribune op-ed: "More than six years after the terrorist attacks of Sept. 11, 2001, the Bush administration remains committed to using the specter of those attacks (and other possible new attacks) as justification for reckless, unlawful and unconstitutional behavior. This pattern can be seen most clearly in the current effort in Congress to grant the administration unchecked power to spy on Americans and to forgive in advance large corporate entities for illegal behavior. . . .

"Congress should not deny us our day in court. The companies broke the law, and we believe they must be held accountable. . . .

"If we give them a free pass this time, won't the telephone companies feel free to violate the laws protecting our privacy in the future?"

Signs of a Cave-In

The shocking Feb. 14 House rebellion on the surveillance issue was actually just a delaying tactic. All the House did was defy a White House deadline. Now signs increasingly suggest that congressional Democrats intend to go belly up again -- as usual.

Jason DeParle writes in the New York Times: "The chairman of the House Intelligence Committee hinted Sunday that a battle over an expired eavesdropping law might be moving toward a conclusion that gave phone companies the retroactive legal protections long sought by President Bush.

"The chairman, Representative Silvestre Reyes, Democrat of Texas, said in an interview on CNN that the committee had been talking to the companies 'because if we're going to give them blanket immunity, we want to know and understand what it is we're giving immunity for.'

"Mr. Reyes did not specify what provisions a House bill might contain. But his use of the words 'blanket immunity' suggested that he might be moving toward a Senate bill, backed by Mr. Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks.

"'I have an open mind about that,' Mr. Reyes said."

Greg Miller wrote in Sunday's Los Angeles Times that House Democrats are considering a plan to set up two separate votes, splitting the immunity issue from the less controversial measures to give the government broad new eavesdropping authorities.

"Officials from both sides acknowledged that there are probably enough votes in the House to pass the measure protecting telephone companies. But splitting the bill would give Democrats who oppose the immunity provision political cover for voting in favor of the broader legislation."

Glenn Greenwald blogs for Salon: "The signs are unmistakably clear that what was always inevitable -- full compliance by the House Democratic leadership with Bush's demands on warrantless eavesdropping and telecom amnesty -- is now imminent. . . .

"This is, of course, everything except surprising. No rational person who has watched Congressional Democrats since they took over Congress could possibly have expected them to do anything but what they always do: namely, whatever they're told to do by the White House."

Greenwald's only question: "If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. . . .

"And now, after picking this fight and letting it rage for weeks, they are going to do what they always do -- just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President."

Plagiarist Resigns

Michael Abramowitz and William Branigin write in The Washington Post: "An aide to President Bush responsible for outreach to conservative and Christian groups resigned Friday after acknowledging that he had plagiarized material for a column he wrote for his hometown paper in Fort Wayne, Ind.

"Special assistant Tim Goeglein admitted lifting material from an essay about college education by former Dartmouth professor Jeffrey L. Hart and presenting it as his own in a guest column Thursday for the Fort Wayne News-Sentinel. Other allegations of plagiarism quickly surfaced after Goeglein informed White House officials of the situation Friday morning, and by day's end he said he would step down. . . .

"Goeglein declined to discuss the matter. He referred questions to the White House press office, which released copies of apologetic e-mails he had sent to [the paper's editor] and Hart.

"'There are no excuses. I am entirely at fault, and you have my sincerest apology. I pray you will forgive me,' Goeglein, 44, said in the e-mail to Hart. Neither e-mail alluded to other cases of plagiarism or offered an explanation for the use of the plagiarized material. . . .

"Peter Wehner, a former Bush aide, said Goeglein was regarded as 'a person of sterling character' who was Bush's 'eyes and ears' in the conservative world. 'It is an important job, and he really developed a bond of trust with the conservative world,' Wehner said."

Here is the official statement from the White House press office.

Ashley Smith writes in the Fort Wayne News-Sentinel: "An internal investigation begun Friday has revealed that since 2000, Goeglein plagiarized 20 of 38 columns The News-Sentinel published. A review of his columns prior to 2000 continues."

Here's a list of the plagiarized columns and their sources.

Smith writes: "News-Sentinel Editorial Page Editor Leo Morris said writers of guest columns are given a certain level of trust to ensure the information they supply is correct and not plagiarized.

"'You don't have the time or the manpower to check everything that comes in,' he said.

"'If you can't trust the faith-based assistant to the president, who can you trust?'"

Nancy Nall, the blogger who first broke the story, was trying to make sense of it all over the weekend: "My guess is, Goeglein did what he did to be thought intellectually substantial, a thinker, the sort of guy who can keep up with the Buckleys' cocktail chatter. But what in the world would lead a young man with so much to lose to risk it all for such a small reward?"

Meanwhile, her commenters kept finding more examples of Goeglein's plagiarism. Apparently it wasn't limited to the Fort Wayne paper. One reader found that a piece Goeglein wrote for Poetry magazine was ripped off in part from the Wall Street Journal.

Bush Still There

The Associated Press briefly sent out a version of the Goeglein story with the headline: "Bush Resigns Because of Plagiarism."

The mistake was caught quickly, and "kill bulletins" promptly wiped away the offending headline -- but not before bloggers snagged screengrabs of the headline and the kill bulletins.

Contempt Watch

Laurie Kellman writes for the Associated Press: "Attorney General Michael Mukasey refused Friday to refer the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers committed no crime.

"As promised, House Speaker Nancy Pelosi announced that she has given the Judiciary Committee authority to file a lawsuit against Bolten and Miers in federal court."

From Pelosi's statement in response to Mukasey's letter: "By ordering the U.S. Attorney to take no action in response to congressional subpoenas, the Bush Administration is continuing to politicize law enforcement, which undermines public confidence in our criminal justice system."

Torture Watch

James Carroll writes in a Boston Globe op-ed: "A piece of legislation sits on the desk of President Bush today, awaiting his signature. Every expectation is that he will veto it. . . .

"The bill is the Intelligence Authorization Act for fiscal 2008, with a provision tying CIA interrogation techniques to the US Army Field Manual, which is explicit in prohibiting 'acts of violence or intimidation, including physical or mental torture, or exposure to inhumane treatment.' The CIA would henceforth be forbidden to engage in any kind of torture, but so would any 'instrumentality thereof, regardless of nationality or physical location.' The legacy of Abu Ghraib, Guantanamo, renditions, and black sites would finally be sealed. The United States would bind itself to one standard of interrogation, completely prohibiting any form of torture. The nation would be back in line with standards of the Geneva Convention, and, as a group of retired admirals and generals put it recently, with 'the moral principles on which this country was founded.'

"Dozens of former military leaders, in a campaign orchestrated by the human rights organization Human Rights First, have been actively working to get all forms of inhumane interrogation outlawed, including those practiced by the CIA. The three points the military leaders make are that information obtained through brutality is unreliable, American soldiers will be subject to similar mistreatment, and that procedures in violation of internationally recognized norms are dishonorable. . . .

"That torture is even a subject of debate in this country is a flabbergasting development."

For background, see my Feb. 14 column, A Question of Human Dignity.

Iraq Watch

Wisam Mohammed writes for Reuters: "Iranian President Mahmoud Ahmadinejad hailed a new chapter in ties with Iraq and took a jab at the United States over its policies in the Middle East during a landmark visit to Baghdad on Sunday. . . .

"Pomp and ceremony greeted Ahmadinejad on his arrival, the fanfare a stark contrast to Bush's rushed and secretive visits. . . .

"Ahmadinejad's motorcade drove from Baghdad's airport to Talabani's presidential palace. Visiting foreign dignitaries normally fly by helicopter to avoid the dangerous airport road."

Sudarsan Raghavan and Amit R. Paley write in The Washington Post: "Declaring his visit 'a new chapter' in Iran's relations with Iraq, the Iranian leader signaled that his country now rivals the United States, the chief financial and military backer of Iraq's government, in terms of influence.

"Standing next to Iraqi Prime Minister Nouri al-Maliki, a fellow Shiite, Ahmadinejad rejected American assertions, repeated as recently as Saturday by President Bush, that Iran was fueling violence inside Iraq.

"'We tell Mr. Bush that accusing others will increase the problems of America in the region and will not solve them,' Ahmadinejad told reporters inside the Green Zone, the fortified heart of the Iraqi government and the U.S. diplomatic mission here. 'The Americans have to understand the facts of the region. Iraqi people do not like America.'"

Library Watch, Part I

The Washington Post editorial board writes: "Imagine a country whose leader collected huge sums for his personal benefit from corporations, from wealthy individuals with interests before the government and maybe even from foreign countries. Imagine that the leader didn't have to reveal anything about the size of the checks or their sources. If this sounds like some corrupt, second-rate republic, think again. It's happened right here, in the United States, and it may be about to happen all over again. We refer, of course, to George W. Bush's presidential library, which recently finalized an agreement with Southern Methodist University to build a library, museum and public policy institute there, at an estimated cost of around $250 million."

Library Watch, Part II

Kathy A. Goolsby writes in the Dallas Morning News: "The Chronicle of Higher Education recently invited creative types to a challenge -- submit a design for the George W. Bush Library on the back of a No. 10 envelope. . . .

"The quirky request brought in some elaborate creations, but also a fair number of political digs. Some designs featured toilets, outhouses and one-book bookshelves. There were bunkers and temples, cross- and W-shaped buildings. One came with tissue paper smelling of gasoline."

Here are the nominees. And here is a video from the Chronicle's Scott Carlson describing the best, the worst, and the weirdest.

Don't miss these options: the bunker; suspended disbelief; the hole in the ground; and the cruciform plan, complete with the Statue of Liberty flipping the bird.

Cartoon Watch

It's the economy, stupid. John Sherffius on Bush as Hoover; Mike Luckovich on Bush's recession aversion therapy; Steve Kelley on perjury; Walt Handelsman on the view from inside the White House; Joel Pett on Bush's new economic plan.

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