Today's Wall Street Journal features a column by several former Attorneys General arguing for immunity for the telecoms for their role in the Administration's warrantless wiretapping program. The Attorneys General argue that immunity is necessary because of a need to encourage private cooperation with the government on national security matters- even if the program in question was unconstitutional. Their argument hinges on this paragraph:
Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government's call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government's actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance.
There are, however, several major flaws in this argument.
1. They seem to make a misstatement (or at least I hope it's a misstatement) in saying that "when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help." The use of the word "duty" is troubling to me- it implies not only a moral, but also a legal obligation to do whatever the government asks if there is an emergency, unless the person knows to an absolute certainty that an official is lying or just wrong. This is a recipe for totalitarianism; I can only hope and assume that the use of the word "duty" was just a poor word choice.
2. They argue that immunity was granted at common law in situations like this, and therefore the legislature is correct in creating additional statutory immunity. Problem is, Congress has already passed a statute (18 USC 2511) dealing with telecom immunity in this specific situation, ie, national security wiretapping. Immunity is allowed under this statute- but only if the administration issues appropriate certification or a warrant. The telecoms are massive companies with armies of lawyers- to argue that they were somehow unaware of the requirement for certification is, to say the least, disingenuous. Moreover, if the government failed to provide appropriate certification, that would suggest a pretty strong inference of bad faith action by the government (and thus by the telecoms). (For the record, it's worth noting that there is a good possibility that appropriate certification was issued- but this would obviate any need for additional immunity). By passing additional immunity for this specific instance, Congress is doing something perilously close to a bill of attainder; moreover, it is essentially making the relevant provisions of FISA totally worthless.
3. If the lawsuits were to be successful, but Congress still felt that the telecoms acted in good faith, then Congress could simply vote to indemnify the telecoms for their actions. In essence, the federal government would be admitting primary liability for the telecoms' actions. On the other hand, if there would be a finding of bad faith action by the telecoms, any prior grant of immunity would in effect rob victims of those bad faith actions of just restitution.
4. If the concern is that allowing the suits to move forward will have a chilling effect on future cooperation with government national security investigations, there is a simple fix: amend the existing statute for future actions. But, this should not be retroactive- as I pointed out above, the telecoms were well aware of the requirements for immunity; if they chose to disregard those requirements, then they knew the risk involved. Moreover, there is increasing evidence, as I argued here, that the program began at a time when no emergency existed. If true, this would negate any claim that the telecoms' actions were justified regardless of the statutory immunity requirements due to the existence of an imminent threat.
|