Monday, November 5, 2007

Ashcroft Is Wrong About Telecom Immunity

This morning John Ashcroft has a piece in the NYT arguing for telecom immunity. Since he has earned some credibility since he left the Administration on issues of integrity, it's worth taking his arguments somewhat seriously. However, his arguments are strikingly similar to the arguments made by several other former AG's in the Wall Street Journal last week, which I discussed at length here.

As with the argument in the WSJ, Ashcroft's argument is deeply flawed because existing law already grants sufficient immunity to cover his concerns about a chilling effect on private cooperation with the government. The telecom companies are not small businesses with limited access to legal help; instead they are massive corporations with armies of lawyers on their payroll, not to mention the private firms they keep on retainer. A quick perusal of existing law easily turns up the fact that the telecoms already have immunity- as long as the government provided them with a formal certification (not a particularly high bar to meet).

If the government did not provide them with such formal certification, then even a summer associate would have understood that no immunity would exist. The solution to this dilemma would be easy- demand the government provide appropriate certification; if the government refused to do so, then it would be a pretty easy inference that the government's request lacks a real basis and was thus unnecessary.

Now, I have no knowledge whether the government did provide a formal certification in this case- if it did, then this is all much ado about nothing. But the fact that the intelligence committees, with their superior access to information, feel compelled to issue this specific immunity says to me that the government did not provide proper certification. So prosecution of these law suits should have no effect on future cooperation with the government other than to the extent private companies will need to insist on formal certification. To change the standard from formal certification to "explicit assurances" is to lower an already low bar. Even worse, this reduces the potential liability of government officials since it effectively eliminates the certification requirement and replaces it with a letter merely stating the President authorized the program and determined it to be legal.

Ashcroft also argues that accountability-based arguments for the lawsuits are flawed because, "for domestic purposes" the intelligence committees have oversight, and they are the people's elected representatives, and they are therefore a more appropriate venue for oversight than the courts. A few problems exist with this line of argument, though. First, the people do not have any direct influence on who gets to be on the intelligence committees. Second, the Congress is not what you would call a neutral arbiter, but is instead largely concerned with re-election; the Dems' concerns about being labeled "soft on terror" creates a huge impediment to their independence in evaluating the arguments for immunity. Third, who oversees the intelligence committees? No one. Finally, the intelligence committees are much closer to a grand jury than a trial jury or judge- there is little or no adversarial process involved, so the Administration can selectively choose what it provides to the committees with no questions asked. In the end, his argument amounts to "Just trust us," these are sensitive secrets.