Today, Sen. Jay Rockefeller, great-grandson of oil tycoon John D. Rockefeller, penned an editorial in the…drum roll…Washington Post, explaining his rationale for immunizing the telecommunications corporations from accountability for their wanton lawbreaking.
Rockefeller became the chairman of the Senate Intelligence committee in January of 2007. Verizon employees immediately bundled their donations to him to the tune of nearly $25,000. Why would they do that?
Could it be that they knew their corporation had been engaging in egregiously illegal violations of the Fourth Amendment?
Apparently, $20,000+ is sufficient to buy off Rockefeller, although he naturally has his rationale.
Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.
The defense is twofold. The administration made false assurances that blatantly and transparently illegal activity was not, in fact, illegal. And they combined this, since it evidently was not alone sufficient to compel compliance, with an appeal to patriotic duty. Here we have the administration telling the telecommunications industry that the patriotic thing to do is to flagrantly violate the Fourth Amendment and the FISA laws. What we absolutely need to see is the legal justification that was used to coerce the telecommunications industry into a conspiracy to defraud their customers.
Rockefeller must know that this argument is incredibly weak, so he continues.
In the meantime, however, these companies are being sued, which is unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future.
Here is another twofold blocking exercise. First, the telecommunications corporations are unable to mount a defense and, second, they will simply refuse to cooperate in the future if they are held accountable for violating our rights in the past.
On the first issue, a much much more accurate description would be that the ‘operational details of the program remain highly classified’ and so the plaintiffs are prevented from making their case. On the second issue, why on Earth would we want the telecommunications corporations to cooperate in wanton lawbreaking in the future? That is exactly what we don’t want. If they can be assured that amnesty awaits criminal violations of our privacy, why will they obey the law?
Watch Rockefeller close the loop, making an argument that precludes accountability for either the government or the telecommunications corporations.
Ultimately, we concluded that if we subject companies to lawsuits when doing so is patently unfair, we will forfeit industry as a crucial tool in our national defense. So we crafted legislation to do two important things: modernize the Foreign Intelligence Surveillance Act so the program is monitored by the courts with proper checks and balances, and keep the focus over legality where it belongs — on the government…
…lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.
Third, immunity is the only procedural mechanism that works. We decided against “substitution” (putting the government in the shoes of the companies) and “indemnification” (making the government cover all costs) because both still mistakenly place the onus on the companies rather than on the government. And we recognized that this could expose too much about our intelligence capabilities, jeopardizing collection that targets foreign threats.
Rockefeller believes that exposure of the program would ‘expose too much about our intelligence capabilities’, which means that no court could ever gain the detail needed to hold the government accountable. And he has already provided that the telecommunications corporations will not be held accountable. End result? No one is held accountable.
At best, Rockefeller’s solution will put the government back in compliance with the law. Perhaps there will be better safeguards going forward. But the precedent will have been established that the executive branch can violate our fourth amendment rights and explicit statutory laws, and the telecommunications corporations can defraud their customers with absolute impunity.
If we want the telecommunications corporations to abide by the law, the best way to do that is to punish them now. Their future cooperation can be best assured by clarifying what is legal and what is not.
If Rockefeller is right and we cannot allow the world to know the details of our operational capabilities, then we must find a way to keep that information classified, while still available to the courts.
Perhaps it is too much to ask for a Rockefeller to take the side of the people over the powerful CEO’s that are his peers.
