Hide Techdirt is off for the long weekend! We'll be back with our regular posts tomorrow.

Secrecy Plus Immunity Eliminates Accountability

from the trust-us,-we're-from-the-government dept

Former Attorney General John Ashcroft takes to the pages of The New York Times to defend legal immunity for telecom companies that cooperate with government surveillance programs. Ashcroft cites the "inherent unfairness of requiring companies to second-guess executive-branch legal judgments" when they have received "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful." Yet the Protect America Act passed this summer, which the White House has been pushing to make permanent, apparently expects them to do precisely that. One of the very few provisions for judicial oversight of the secretive surveillance authorized by that act is a clause allowing companies to challenge requests for information before the Foreign Intelligence Surveillance Court. As Qwest has already discovered, firms deemed uncooperative by the government may face serious consequences, such as the loss of lucrative contracts. If the countervailing threat of private lawsuits is eliminated—and in particular if legislators create the expectation that cooperation with extralegal demands can always be retroactively blessed—firms have no motive beyond sheer public-spiritedness to raise objections to specific requests, however unreasonable those requests might seem.

Under the current law, the court's only other point of contact with the wiretap program comes at the most general and abstract level. Traditionally, though, courts have entertained both "facial" and "as applied" challenges to statues—objections in practice as well as in principle. Since the point of secret surveillance is that its subjects may never learn it occurred, removing the telecoms' incentive to raise questions effectively dispenses with that second check. As legal scholar Jack Balkin has argued, secrecy plus immunity eliminates accountability.

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Secrecy Plus Immunity Eliminates Accountability”

Subscribe: RSS Leave a comment
6 Comments
chris (profile) says:

no accountability is the whole point

the whole point of keeping surveillance a secret is to remove accountability for it. if the executive branch was held accountable for it’s actions, it couldn’t just do as it pleases.

secret police never want to be held accountable, it was that way in the soviet union, it’s that way in cuba, and it was that way in third reich.

there’s a reason they are called secret. who they are, what they do, and who they do it to are all a secret.

if the public doesn’t know, it’s carte blanche to do anything to further their cause.

jhozae says:

Secrecy Plus Immunity Eliminates Accountability

Huh? John Ashcroft takes to the pages of the New York Times? I thought the reason Mr. Ashcroft is former Attorney General is that he died shortly after his heroic refusal to cave to Alberto Gonzalez’s demand Mr. Ashcroft, on his deathbed, approve wiretapping he knew was not legal?

The words “takes” and “cites” in the first paragraph should be “took” and “cited”, and the date of the article should be provided. Was the entire first paragraph plagiarized from another article, written at the time of Mr. Ashcroft’s Times piece? Sure seems like it. Or is there another former Attorney General named John Ashcroft of whom I’m somehow not aware?

Anonymous Coward says:

Ashcroft’s switching (flip flopping?) away from his principled hospital behavior is easily and logically explained.

Mr. Ashcroft’s consulting firm represents telecommunications companies seeking immunity from prosecution for those disclosures, and he is their advocate.

Frankly, I was pleasantly shocked that he took that position while in the hospital. Maybe he feared his imminent death. I guess he’s over that now.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...