Suppose that the next big terrorist attack on our country comes two weeks after a new Democratic president has taken office. Simultaneous suicide bombings devastate 20 schools and shopping malls around the country, killing 1,500 people. The intelligence agencies believe that at least 20 more trained jihadists, including American citizens, are in the United States planning follow-up attacks.
The president is told that the best hope of stopping a second wave of attacks is to immediately wiretap as many calls and e-mails as possible from and to every private citizen who has been to Pakistan or Afghanistan since 1999. These hundreds of domestic wiretaps, with neither warrants nor probable cause to suspect any individual of terrorist ties, might well violate the Foreign Intelligence Surveillance Act.
The president nonetheless asks the major telephone companies to place the taps for 30 days while the administration seeks congressional approval. He or she also assures the telecoms in writing that the new attorney general has advised that the Constitution empowers the president to temporarily override FISA during such an emergency -- a controversial theory never tested in court.
Most Americans would want the telecoms to say yes without hesitation. But the telecoms would have reason to say no -- or delay for a few dangerous days to consult their lawyers -- if liberals and libertarians get their way in a battle currently raging in Congress.
The issue is whether to immunize these same telecoms retroactively, as President Bush and a bipartisan majority of the Senate Select Committee on Intelligence (including Chairman Jay Rockefeller IV) urge, from liability for having said yes to Bush's warrantless surveillance program during the unprecedented national crisis precipitated by the 9/11 attacks.
The telecoms face more than 40 class actions seeking hundreds of billions of dollars in damages for their roles in the Bush program, which they agreed to after being assured that the attorney general had deemed the program lawful.
Allowing this litigation to continue would, as a group of highly respected former Justice Department officials wrote in a joint letter to the Senate Judiciary Committee, "produce perverse incentives that risk damage to our national security," because "both telecommunications carriers and other corporations in the future will think twice before assisting any agency of the intelligence community seeking information."
This particular group includes Jack Goldsmith, James Comey, Patrick Philbin, and John Ashcroft. They (especially the first three) won bipartisan applause for leading a rebellion in 2004 against overreaching claims of power by Bush, who chose to secretly override FISA not just for a few weeks but for years.
"Given our experiences," the former officials wrote, "we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities." But the proper forum is the congressional oversight process, they asserted, not "a public lawsuit against private companies that were asked to assist their nation."
Such leading Democrats as former Sen. Bob Kerrey, former Rep. (and 9/11 commission Co-Chair) Lee Hamilton, and former Attorney General Benjamin Civiletti have also called for immunizing the telecoms.
On the other hand, People for the American Way, like other liberal groups, argues that immunity would "protect telecoms that knowingly violated the law." But the telecoms did not violate the law -- even if Bush did -- according to an October 26, 2007, Senate Intelligence Committee report urging adoption of the immunity proposal as part of an important bill updating FISA.
The committee, after forcing the administration to show investigators the relevant presidential and Justice Department documents, found that the record showed that the telecoms "acted on a good-faith belief that the president's program, and their assistance, was lawful." Courts have for centuries seen such a good-faith belief as grounds for immunizing from lawsuits private parties that heed government officials' requests for help in protecting public safety, especially in emergencies.
And, in fact, hardly anyone in Congress thinks that the telecoms should (or will) be forced to pay huge damages to the plaintiffs, who after all have suffered no real harm. So why are some senators, including Patrick Leahy, the Senate Judiciary Committee's senior Democrat, fighting the immunity proposal?
The real reasons are election-year pressure from liberal groups and the hope that the lawsuits will force public disclosure of information embarrassing to the Bush Administration. Leahy said in a press release that he opposed giving retroactive immunity to the telecoms because that would reduce their incentives to protect privacy and "would eliminate the courts as a check on the illegality of the warrantless wiretapping of Americans that the administration secretly engaged in for almost six years."
Leahy may well be right that some aspects of the highly classified wiretapping program were illegal. Indeed, Goldsmith, who took over the Justice Department's Office of Legal Counsel in late 2003 and later touched off the above-mentioned rebellion, has publicly called the still-secret OLC surveillance memos that he inherited a "legal mess."
In my own view, Bush's decision to secretly override FISA for a time immediately after 9/11 was probably a lawful exercise of his war powers. But his legal rationale became weaker and weaker when he continued to override the law for months and years without seeking congressional approval.
It is one thing to say that the president has inherent power to disregard an outdated law during an emergency in which immediate action might save many lives. It is something else to say that the president can secretly continue to disregard that law for several years without ever seeking to amend it. (See my 1/28/06 column.)
But doubts about the legality of Bush's actions are no justification for holding hostage telecoms that relied on the administration's assurances of legality and were in no position to second-guess its assertions that the surveillance program was essential to national security.
Not, that is, unless we want to risk that the telecoms, credit card companies, banks, airlines, hospitals, and other private companies -- whose cooperation is essential to finding terrorists before they strike -- will balk or delay when the next president seeks their help in an emergency.
And to keep things in perspective, let's remember that even if Bush did violate the law, the terrorist groups targeted by his surveillance program have taken thousands of American lives; that the program itself has apparently caused no serious harm to anyone (except terrorists); and that no evidence exists that Bush or anyone else has ever made any improper use of any intercepted communications.
Opponents of immunity say that the telecoms have nothing to fear in court if they can show that they acted lawfully. And it does seem most unlikely that the telecoms would ultimately lose; the lawsuits face huge obstacles, including the state secrets privilege and doubts about the plaintiffs' standing to sue, as well as the strong evidence that the telecoms acted lawfully.
But even a remote risk of massive liability for doing the right thing in the past might deter some from doing the right thing in the future. And in the vast, interminable, unpredictable, often perverse meat grinder that high-stakes litigation has become in this country, victory in court would come only after many years of expensive legal battles, uncertainty, downward pressure on stock prices, and publicity damaging to the telecoms' international business interests. This prospect might drive them to accept a nuisance settlement that would yield millions of dollars for the plaintiffs' lawyers and very little for anyone else. Indeed, that's what many plaintiffs' lawyers are hoping for.
Some senators and others have proposed ways to relieve the telecoms of monetary liability while keeping the litigation alive to force a healthy public airing of information about what Bush and his aides did. One such proposal would have the government cover any damage awards; another would place a very low cap on any damages; a third would ask the FISA court to decide whether the telecoms broke the law. Such expedients would be better than no protection at all. But they would not give the telecoms the finality and the relief from litigation costs that they want and deserve.
In any event, it seems unlikely that any kind of litigation against the telecoms will yield much new information about what Bush and his aides did. The main reason is that any such evidence is probably inextricably intertwined with operational details of the surveillance, which are highly (and properly) classified. And lawsuits against the government, which would be unaffected by immunizing the telecoms, would be a more logical vehicle for exposing whatever can properly be exposed.
But the bottom line is that a remote chance of exposing any Bush misconduct is simply not a good enough reason to run even a small risk of losing potentially lifesaving intelligence. And it's simply unfair to hold hostage private companies that thought they were helping to save lives and did nothing wrong.