CT Blue

There is no end to the sacrifices that I make in service to my readers. Case in point: I forced myself to read John Ashcroft’s Op-Ed piece in today’s New York Times, in which he argues for granting telecoms immunity from suit for co-operating with illegal eavesdropping on Americans..

I wish I had the time to thoroughly research all of the suspect legal assertions that he makes in this piece, but I just want to highlight a few. Here’s my favorite:

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

I’ve never heard of such a principle. Not to put too fine a point on it, I don’t believe any such principle exists, unless he’s talking about qualified immunity. of which a bit more later. If such a principle existed, these suits would have been dismissed already. That’s not to say they won’t be, at some point, if Bush successfully pulls the states secret dodge, but I very much doubt that they will be, and am sure they should not be, dismissed on these grounds. It is simply not the case that the President of the United States has the right to legalize illegal acts by executive fiat, which is precisely what Ashcroft is proposing. This argument, like many Ashcroft makes, is a more sophisticated, or at least more obscurely phrased version of the “I was just following orders” defense that the Germans tried at Nuremberg. The fact is, there is a statutory defense-the telephone companies cannot be successfully sued if they acted pursuant to a court order or written certification from the Justice Department that the request was legal. The Justice Department has taken the position that the question of whether such a certification was made is itself a state secret, which suggests that it never happened. In other words, the phone companies should have asked for the certification. All they had to do was read the statute.

Next we have this:

As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program — which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution — a telephone company simply has no expertise in the relevant legal issues.

Actually, believe it or not, phone companies have access to extremely high priced legal talent, to whom the statutes of the United States are available 24 hours a day. It wasn’t hard to determine if the program was illegal. At least that’s what the judge thought, when he tossed out AT&T’s claim to qualified immunity. (PDF) Here’s what the conservative Republican judge who ruled on the issue had to say:

Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot
seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

And, of course, we now know that Bush was pushing his program before 9/11, therefore before Congress passed the measure that Ashcroft and company distorted into authorization for their lawlessness.

In truth, it doesn’t take much of a lawyer to see that what they were doing was illegal. That’s not to say that Bush appointed judges won’t make it legal, but to do so they will have to ignore established principles of legal construction, the Constitution, and logic.

By the way, most of the legal stuff I’ve written in this post is just a regurgitation of the judge’s decision, which you can read at the link. Ashcroft should read it too. Maybe he’d learn something.