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.