A Perilous Policy

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that is what Benjamin Civiletti, Dick Thornburgh and William Webster are calling a failure to grant conditional civil immunity to private individuals and companies who cooperate with authorities in national security matters. Specifically, they are talking about provisions in a FISA revision bill that would grant some immunity from civil litigation to telecom companies that cooperated with post 9/11 surveillance.

Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government's call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal.

We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk.

The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself.

This concern is particularly acute for our nation's telecommunications companies. America's front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the "early warning" system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.

As they point out, the issue of the legality of the program is completely different from the question of whether the companies acted in good faith when asked for help. Private citizens and companies are expected to cooperate with officials when there is a public need. Those entities cannot know all the facts and have to rely on assurances from the official that the needs – and the assistance – are legal.

This situation is precisely the same one that came up with the six flying imams and their threat to sue "John Does" who reported their antics. The public – individuals or corporations – have to help and be alert in these times.

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4 Responses to A Perilous Policy

  1. po says:

    The 2 situations are not precisely the same. One involves private citizens and a publicly traded company responding to customers’ perceived fears and doing what they could within their contractual rights.

    The other involves the government and multiple publicly traded companies, at least one of which bothered to read the law and determined the NSA program to be illegal under then existing (and current) law. there is a thing called the Constitution and a plethora of case law interpreting the 4th amendment and the necessity for a warrant if you want to conduct electronic surveillance of Americans on American soil. None of the companies that complied with the government’s ‘request’ did so because the government said it had a warrant, was going to get a warrant after the fact or even because this or that company recognized a supposed problem with this or that customer’s communications. No, they just split their wires so the government could listen in willy-nilly whenever and with whomever it wanted. And these aren’t mom and pop operations, these are multinational corporations with hundreds of lawyers on staff and many more at high powered law firms who can do what any American can do — read the law and figure out if something is illegal or not.

    No, the 2 situations are really worlds apart.

    And this idea of “good faith” . . . Only 1 company acted in good faith. The others did what they were told. And we still don’t know what that was . . . so, explain again that good faith argument please . . .

  2. kevin kildow says:

    Six years? Six years of emergency suspension of the rule of law?
    Emergency provisions are built into the existing FISA law – and if these
    requests were granted under such conditions then the courts would have
    already dismissed the outstanding lawsuits. They have not. On the
    contrary – they have ruled that these suits have legal merit and should be
    allowed to proceed. Should we encourage our corporate and individual
    citizens to assist law enforcement? Yes. Does this mean that any and
    every request from a person with government authority should be honored no matter the legality? No. This amendment is disingenuous at best, criminal at worst. Who is legally at risk besides the telcoms? George
    Bush and Alberto Gonzales for deliberately ignoring the laws of the land
    for much longer than any reasonable person would feel necessary under
    “emergency” provisions. Six years for the telcoms to remember that what
    they were doing was illegal and that perhaps they should remind the
    president and his administration that there is already a perfectly
    legal system set up to rubber stamp requests such as theirs? Gentlemen – please. No citizen and I would venture no court would find fault if
    these provisions were in place for six months to a year but six years
    pushes the bound of credulity. That other branch of government, the
    judicial, was created for a reason – to uphold and administer the laws of
    our land. Why are they so afraid to let them do their jobs? What exactly
    are they afraid of?

  3. MikeO says:


    I, as an “any American” referenced in your post, can read the law and see that neither the companies’ providing the taps nor the government’s having access to the taps violates the Fourth Amendment to the “thing called the Constitution” since I cannot see how the taps are surveillance until somebody from the government listens on them.

    As for the “listen in willy-nilly whenever and with whomever it wanted” part: Do you know that this is what the NSA was doing? Can you prove it?

    Are you certain that the NSA program was illegal? So far as I know, the question of whether the AUMF trumps FISA has not yet been settled. Does the Fourth Amendment even apply to the NSA program given the border search exception?

    Unless you can show me the five robes you wear while sitting in the five seats you hold on the Supreme Court, I suggest you drop the condescension and temper your brazen assertions of what is illegal and what constitutes good faith.

    If you insist on getting your panties in a bunch about privacy, unreasonable searches, and self-incrimination, then there are far bigger fish to fry starting with income tax returns.

  4. kevin kildow says:

    MikeO – seriously? Your argument is based on the supposition or possibility that the government surveillance was conducted, recorded and filed but never actually listened to, accessed or followed up on? Wow. That is a new one.

    If your fear or objection to privacy violations (based on your post) is focused on the IRS – then the government having unlimited legal access to all your voice and internet communication would seem to be an issue that might concern you. You don’t think they might share?

    As to the question – “Do you know that this is what the NSA was doing? Can you prove it?”

    Well, that’s exactly why the lawsuits were filed and why they should be allowed to proceed through the legal channels that have been set up to settle exactly these kind of questions.

    What is everybody so afraid of? Why is the legal system suddenly so frightening to all of these patriotic and law abiding corporate citizens – and why is it so frightening to the executive branch of our government?

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