Ignorance is no excuse for telecoms in NSA illegal spying case

By Martin Bosworth

Today former Attorney General and current AT&T lobbyist John Ashcroft had an editorial in the New York Times demanding that the Senate grant immunity against litigation for telecom companies that participated in the NSA spying program. It’s your typical “ZOMG LIVES ARE IN DANGER 9/11 PATRIOTISM!!!!1111” swill, but one passage in particular bears citation–Ashcroft’s idea that the combined might of these companies’ legal departments couldn’t possibly realize these orders were illegal:

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.

Simply put, this is horseshit of the first order.

As Google, Vonage and the city of Chicago can tell you, the major telecoms are stuffed full of well-paid lawyers of all stripes (many with former Hill experience) that will happily sue a problem into oblivion if they can’t buy it or break it. Don’t forget the case of William Barr, Verizon’s head legal counsel, friend to both Reagan and Bush 41, and hater of all things FISA-related. And Ashcroft is hardly the only litigator or pol to exchange public service for hefty paychecks as a lobbyist for telecom causes.

Put simply, if a layperson like myself with no–that’s NO–legal expertise beyond a college course in constitutional law can figure out that these programs were illegal, so too can these people. As the ACLU’s legislative director, Caroline Frederickson, said in a conference call today, the idea that they couldn’t figure this out is “preposterous.” “These guys know the law better than much of the government,” Frederickson said. “I don’t think this ‘slipped past’ anyone.”

Harvey Grossman, legal director for the ACLU of Illinois, concurred, saying that the multiple lawsuits filed against the telecoms was a chance to explore these “very complex relationships” and gain a “full public exposition” of the shady web of influence that is spun between the major telecom companies and elements of the federal government.

Also participating in the conference call was Kevin Bankston, a senior attorney for the Electronic Frontier Foundation, another major plaintiff in the lawsuits against the government and the telecoms. Bankston made a point worth repeating and remembering: “These companies control the networks that enable access to our most private communications…if these lawsuits are blocked, that sends a message of approving unchecked executive power….that these companies can spy on you at will if the President says it’s okay.”

Ignorance of the law is no excuse, and that should hold particularly true if you’re a multibillion-dollar company with a legal department whose collective salaries probably outpace the GDP of your average Third World country. Don’t believe the hype.

7 replies »

  1. All these folks arguing in favor of granting telecom immunity keep forgetting to mention that here was a telecom firm that did recognize the government’s request to be illegal. Likely as a consequence, but not proven, its CEO was promptly placed under investigation and later convicted of insider trading, a charge that could be made to stick in just about any major corporation.

  2. In my understanding (and I’m not a lawyer), Ashcroft ruined his own case for immunity. He states that “Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities”. Very well, then why do the telecoms need a special law defending them, when there is this clear precedent that will keep them out of trouble? If they had sufficient reason to believe the administration, as Ashcroft tries to make us believe, they have nothing to fear in court. So, any special protection is unnecessary. I rest my case.

  3. Bob,

    No one’s forgotten that, believe me. Over the weekend there were a number of interesting articles that delved deeply into Qwest’s history with the NSA and Nacchio’s decision not to participate in the program–and the resultant consequences.

    What’s interesting about this is that Qwest founder Phillip Anschutz was a devoted right-winger that supported many Republican causes, and Nacchio himself was quite the crook. (Sam can tell you more about that.) Strange instance of moral courage on his part, though I suspect he was more worried about the legal repercussions of being found out–which is what Verizon and AT&T are facing now.

  4. Nacchio may have done something right, but if he did I assure you it was completely by accident. File under “E” for “Even a blind pig will find a truffle every once in awhile.”