We’ve seen it in James Bond movies or super-cop flicks hundreds of times: The spy or the policeman jumps into a vehicle, flashes some fancy identification badge, and orders the driver (or helmsman or conductor) to break all known speed limits or other regulations while chasing some bad guy or intercept delivery of a bomb.
Audience members never question whether the driver has any real choice in the matter. Nor should they. Simple duty demands that the driver comply. And longstanding common law doctrine holds that the driver is immune from any rules violated in the process of complying with an official order whose lawfulness he has no clear grounds to question.
As Judge Benjamin Cardozo (later a Supreme Court justice) wrote in the New York case Babbington v. Yellow Taxi Corp., “the citizenry may be called upon to enforce the justice of the State, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.”
Today (or perhaps tomorrow), the Senate will consider a bill provision that tests this doctrine. The question is whether to retroactively provide immunity to phone companies (telecoms) that complied with written requests for cooperation with classified counterterrorism efforts.
Former Attorney General John Ashcroft has written that “American lives [are] at risk” if the phone companies are allowed to be sued for invasion of privacy. Former Sen. Bob Kerrey, D-NE, a member of the 9/11 commission, wrote that if the companies can be sued, “the entire system for investigating terrorism may be fundamentally undermined.”
The Senate Intelligence Committee, charged by law with monitoring secret counterterrorism efforts, voted 13-2 to provide immunity for the telecoms. Chairman John Rockefeller IV, a liberal Democrat who otherwise is a big critic of President George W. Bush‘s “warrantless surveillance” program, wrote recently in The Washington Post that making American business vulnerable to such suits would mean “our intelligence collection could come to a screeching halt.”
As it is, dozens of class action lawsuits against various phone companies have been consolidated into one massive case in federal district court in San Francisco. Some of the suits request only “declaratory” and “injunctive” relief – the equivalent of a “cease and desist” order against the telecoms – but others seek monetary damages.
To get a sense of the possible scope of these suits, consider that Sen. Dianne Feinstein, D-CA, has suggested that the federal government cover any judgments against the companies, and has proposed a fund of $30 billion for the purpose. Whether for the companies or the taxpayers, that’s not exactly chump change.
The American Civil Liberties Union (ACLU) is a party to at least two of the lawsuits (seeking only declaratory, not monetary, relief). ACLU legislative consultant Michelle Richardson said it is not only the government officials who may have broken the law. “It takes two to tango,” she told me. “The companies knew it was illegal. There is no way that sophisticated companies like that could ignore the Constitution, FISA [the Foreign Intelligence Surveillance Act], and 30 years of history of working with law enforcement on wiretaps.”
But it is far from clear that anything illegal was done, much less that the companies knew of illegalities. In 2002, the special FISA court noted (in In re Sealed Case) that “all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information…. We take for granted that the President does have that authority.”
Meanwhile, in the Senate Intelligence Committee noted in its official bill report that the telecoms repeatedly acted pursuant to official letters which “state that the activities had been authorized by the President” and that “also stated that the activities had been determined to be lawful.”
In short, the surveillance itself may well have been legal; and even if it wasn’t, the phone companies had every reason to believe that it was. They should not be scapegoats for citizens worried that the government may have overstepped some technical bounds in an effort to ward off mass murder. Instead, they ought to be thanked.
Quin Hillyer is associate editorial page editor of The Examiner. He can be reached at [email protected].
