When cooperating with U.S. antiterror efforts is risky
Potential liability for past actions is central to the Bush administration's push to grant immunity to telecom firms that helped the US wiretap program, and it was a factor in Mukasey's hedged judgment about waterboarding.
So the president has asked you to do something that he claims is crucial to the national security of the United States. He assures you that the action is legal. Can you go ahead and do it, secure in the knowledge that a presidential imprimatur will keep you from getting dragged into court sometime in the future?Skip to next paragraph
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Probably not, no. At the very least, run the scenario by an outside lawyer.
That's the lesson a careful observer might draw from a pair of controversies swirling through Washington in recent weeks. The question of potential liability for past actions is central to the Bush administration's push to grant immunity to telecommunications firms that aided the National Security Agency's warrantless wiretap program. It also threaded through Attorney General Michael Mukasey's hedged judgment as to the legality of waterboarding.
Overall, the issue has worried many administration officials for years, according to Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel from 2003 to 2004.
On one hand, these officials face unrelenting pressure to prevent more terrorist attacks on the United States. On the other, they are supposed to stay within the lines of US law, including privacy and civil rights statutes.
"That some court or judge or prosecutor or investigator down the road would interpret these criminal laws differently than the administration did and hold them criminally liable was a central, prevalent concern in the administration," Mr. Goldsmith, now a professor at Harvard Law School, told a Senate Judiciary Committee hearing Oct. 2.
The question of legal immunity for telecommunications companies that helped the government eavesdrop on Americans without court orders is likely to be a hot topic in the Senate this week. The Senate Judiciary Committee is scheduled to decide if it wants to include such retroactive protection in the new electronic surveillance legislation, which is wending its way through Congress.
Telecoms face lawsuits
Telecommunications companies face more than 30 lawsuits alleging that the firms violated customers' rights by cooperating with the government's surveillance effort. Immunity, if granted by lawmakers, would make such suits moot.
The Bush administration says it will veto the surveillance bill if the immunity provision is not included. It's only fair, supporters say, to protect an industry that answered a presidential call after 9/11.
"If the local fire company asked for your help putting out a neighbor's blaze, you would not force the firefighters to justify their request. You would just help, right? That's what the phone companies did when the Bush administration asked them in secret for help with wiretaps to target Al Qaeda communications into and out of the country," wrote Lee Hamilton, a former House member and cochairman of the National Commission on Terrorist Attacks Upon the United States, also known as the 9/11 Commission, in an opinion piece on the subject.
Critics say immunity simply would provide an incentive for corporations to break the law in the future, by giving them the impression that they might count on obtaining an after-the-fact free pass.
Immunity would let the administration, as well as telecom firms, off the hook, according to Senate Judiciary panel chairman Patrick Leahy (D) of Vermont.