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.

Reader Comments (rss)

(Flattened / Threaded)

  • icon
    chris (profile), Nov 7th, 2007 @ 6:58am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    jhozae, Nov 7th, 2007 @ 7:51am

    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?

    reply to this | link to this | view in chronology ]

  • identicon
    jhozae, Nov 7th, 2007 @ 7:54am

    Secrecy Plus Immunity Eliminates Accountability

    Oops. Meant to add that, otherwise, I agree with Mr. Sanchez.

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin, Nov 7th, 2007 @ 8:10am

    Ashcroft isn't dead...

    ...and he wasn't on his deathbed when Gonzalez and the gang went to visit him. He was just sick and in the hospital.

    reply to this | link to this | view in chronology ]

  • Secrets are rampant in our Government

    Fortunately secrets are never kept secret forever.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Nov 7th, 2007 @ 6:13pm

    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.

    reply to this | link to this | view in chronology ]

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