So Much For All That “We Are A Nation of Laws” Stuff . . . .

This past month saw, practically unmarked, the anniversary of the Saturday Night Massacre, in which Richard Nixon’s refusal to turn over the secret tapes sought by Special Prosecutor Archibald Cox for information relevant to the Watergate break-in. Nixon offered instead to turn the tapes over to a trusted Senator, who would provide the Special Prosecutor and interested members of Congress with summaries. The “massacre” involved firing the Attorney General and the Deputy Attorney General before Nixon found someone (Robert Bork) willing to fire Cox, because Cox refused to drop his subpoena for the tapes and accept Nixon’s compromise after D.C. district court Judge John Sirica denied Nixon’s claims of executive privilege.

Congress then had a choice. Whether to back down and accept the Nixon compromise on a theory that it would avoid a Constitutional crisis while maintaining a fig-leaf of Congressional oversight, or to appoint a new special prosecutor who would continue to demand the President honor the Congressional demand for the tapes. Congress chose the later, and the case went all the way to the Supreme Court, which ordered the President to respect the subpoena and turn over the tapes. A week later, Nixon resigned. At the time, many commentators and scholars saw it as a signature moment in the triumph of the rule of law and a vindication of the principle that the United States is a country of “laws, not men.”

Sadly, we now face another such signature moment. President demands not merely approval of his domestic surveillance program, but wants retroactive immunity for the phone companies that provided the Administration with customer information, lest a court determine that the telcos thereby violated Section 222 of the Communications Act and other provisions of law. Again, scholars and civil rights activists raise grave concerns about how allowing the President to defy the law creates serious concerns about maintaining the Rule of Law and respect for the Rule of Law. Again, we the people look to our elected representatives in Congress to stand firm and protect the rule of law against the encroachment of a Chief Executive convinced that he should have the freedom to act for the greater good. Unfortunately, this time, it looks like the Democratic leadership may prove a weak reed upon which civil liberties cannot trust to lean. Unless, of course, the people rise up clearly in one voice to say, in the words of Rudyard Kipling:

All the right they promise -— all the wrong they bring.
Stewards of the Judgment, suffer not this King!

More below . . . .

As everyone reading this knows, the nation’s telephone companies (with the exception of Qwest) provided the Administration with personal telephone records without a warrant. That rather explicitly violates existing statues and judicial precedent requiring law enforcement entities to secure a warrant from a court on a showing of probable cause. While rules governing surveillance for purposes of national security have always been broader and murkier, both Congress and the courts have set clear limits on federal power in this area precisely because agencies of the federal government abused the surveillance powers in the past.

No doubt the FBI genuinely believed civil rights activists such as Martin Luther King, Jr. were in cahoots with Moscow and that a failure to bug their phones and search their offices was just asking Ivan to drop The Big One on us, just as the FBI and NSA today believe that without the ability to engage in broad “fishing expeditions” are the only thing standing between us and another attack on Americans here or abroad. But history provides us with plenty of warning as to why we need to view these arguments with suspicion. And, for those who don’t think history matters here, I invite you to consider the conduct of this Administration and how it has treated the limited safeguards on surveillance power that Congress did impose, over the strenuous objections of the Administration. A 199-page audit showed the FBI routinely violated the procedural safeguards designed to prevent law enforcement from abusing the broad powers to conduct surveillance in the name of national security.

So when the Administration insists on doing one more round of favors for its buddies and demands that we grant retroactive immunity to the phone companies for cooperating in an end run around the Constitution and the law, I worry. More than worry, I cry out in genuine fear for the rule of law. As we have seen, political crises can cause the President and Congress to collude in undermining our basic rights to privacy and security. In such times, it has been the courts, often at the request of individual citizens in the face of the elected branches of government and even the popular will, that has acted as a firebreak against federal power gone wild in the name of the greater good. And where, as here, the administration has demonstrated that it regards the legal requirements to authorize surveillance as details to disregard and circumvent, the people must have other means to protect their privacy and security — including recourse to the law against private actors that chose to cooperate with illegal requests for information.

And yes, I said our “security” as well as our “privacy.” Contrary to the claims of the Administration and its supporters, allowing the President to circumvent the law in the name of national security makes us less secure, not more secure. For as history shows us, and the conduct of this Administration consistently confirms, the power to cast a broad net in the name of national security invariably comes to include detentions and questioning on the basis of flimsy suspicion or guilt by association. It is no accident that our Constitution speaks of the right of the people “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures ”. To trade the possibility of a foreign attack for the certainty that some citizens will be subjected to unreasonable and unnecessary monitoring, false arrest, and enhanced interrogation — as has already occurred — strikes me as an extraordinarily poor bargain.

Having made my case for the general principle, let me now turn to the specifics here. Defenders of immunity for the phone companies argue that even if the President’s domestic surveillance program violated the law, we should hold the phone companies blameless. After all, they merely acted as responsible and patriotic corporate citizens, reacting to the demands of the Executive in a time of national crisis? Or, as Rep. Lamar Smith (R-TX), a vocal supporter of retroactive immunity, has argued:

It’s common sense to provide liability protection to communications providers that helped the U.S. government in good faith. These companies deserve our thanks. They don’t deserve a flurry of lawsuits.

Rockefeller, Reid, and the other Democrats in the Senate supporting the “compromise immunity” likewise believe that telephone companies that were assured by the Administration that the requests were legal — even if the telephone companies did nothing to verify this claim — the telcos should be held blameless. The version supported by some Democrats in the Senate will immunize telephone companies if they can prove that the Administration gave them “reasonable assurances” that the program was legal. So, these Senators appear to believe, while we shouldn’t have telephone companies volunteer to violate the law, we shouldn’t require telephone companies to choose between the rule of law and a request from the government to help them end run the law.

To grease the wheels of this compromise, the Administration agreed to show relevant documents to a handful of key Senators, while withholding the relevant documents from others, in exchange for support. As pressure grows, the White House continues to dole out little tidbits of information and requested documents in the hopes of winning over enough Senators to get immunity passed.

As the memos of Alberto Gonzalez make clear, a good lawyer can always come up with some vaguely plausible argument for construing the powers of the President as broadly as possible. I therefore put not faith in an immunity clause that says “companies are free to ignore the plain language of the law — or at least make their own diligent inquiry — if the Administration can tell them with a straight face it’s legal.” As I have written before, corporations have every reason to satisfy the demands of those in power and no responsibility for safeguarding our Constitutional rights. Corporations are tools for accomplishing economic ends. If we immunize them from the consequences of violating the law, they will always side with the Administration or Congress against the rights of their customers – especially in industries where customers cannot punish these companies by switching to another provider. Only by holding the companies themselves accountable can we hope to create a counter pressure to Executive demands. If a company executive sees no risk in cooperating with an illegal demand for information, the executive would be a fool to say no. But if the executive risks potentially millions of dollars in fines, it may give the corporate decision makers some pause. And we customers some hope that our rights will be respected.

And, I will confess, the willingness of the Republican leadership to play partisan politics with our national security and Constitution makes me question how deep and sincere their belief that every President, Republican or Democrat, needs such an unfettered right to seek cooperation from the private sector. Does anyone else remember the days when Republican members of Congress referred to the FBI as “jackbooted thugs,” held oversight hearings to determine whether to limit the authority of the ATF or FBI, and questioned President Clinton’s use of military force against terrorists on foreign soil? These Republican Senators and Representatives so determined to push through President Bush’s national security demands gave a cold shoulder (thank goodness!) when then-Vice President Al Gore tried to force Clipper Chip on the tech industry, or when the Clinton Administration prosecuted computer scientists for distributing “munitions” in the form of encryption software (and thus drove a generation of Silicon Valley and Techno-civil liberties folks into the Republican party). What happened to the principles these Republicans fought for then? And if 9/11 really changed everything, will we see the same fervor for Presidential power, the same offended tone that anyone should dare question these vital programs, under President Clinton or President Obama?

Which leads me to my final point. Respect for the rule of law. Above all else, above the importance of any specific law, lies the respect for the rule of law. Many years after the events of Watergate, I had Archibald Cox for Constitutional Law. Cox was the original special prosecutor, who was ultimately fired as part of the “Saturday Night Massacre” when he insisted on demanding President Nixon abide by the subpoena and cough up the secret tapes because the court had rejected his claims of Executive Privilege, Separation of Powers, and refused a Nixon compromise that would have given one Senator access to the tapes to summarize for Cox and the Senate. Cox liked to describe to us how he gathered his staff around to ask how they could enforce the subpoena if Nixon refused. “Use sheriffs to serve the subpoena,” suggested one staffer, that being the standard way courts enforce their edicts. “And have them met by the Secret Service?” Asked a second staffer. “Revoke his license to practice law in California?” “Get a contempt order and attach his personal assets?” After a few hours discussing these impractical suggestions, Cox sent everyone home. Only respect for the rule of law, Cox realized, could ultimately force the President to provide the secret tapes. And, ultimately, it did — although it took appeals up to the Supreme Court to demonstrate that the President is not above the law. So great was the respect for the rule of law in those days – among the people, in the Congress, even by Nixon and members of the Administration – that it ultimately became impossible for the President of the United States to refuse the proper demand for evidence, despite the lack of any means of enforcement.

If Congress retroactively grants immunity, it will be one more blow against the respect of the rule of law. Not a fatal blow to be sure. Our Constitution and system of government have weathered such storms in the past. But a severe blow nonetheless. Congress will send a signal to the corporations that control the vital services on which we all depend, and to which we must entrust our private information, that they may safely collude with the Executive branch to break the law. Because a complaint Congress and a strong Executive will make it all right later. Yet these are the very companies into which we must most carefully inculcate the respect for the rule of law, because they have access to our most personal information and we have no way of discovering when our rights are violated.

Congress will also send a message to us. We will learn that our rights must yield to the interests of the President and the Powerful when they work together in the name of national security. That we must accustom ourselves to such violations in the “post-9/11 world.” And while powerful Democrats, brought within the inner circle by the crumbs of information the Administration grudgingly shares, may not go as far as Rep. Lamar Smith in saying we should thank the telephone companies for preferring the illegal demands of the President to the rule of law, we shall be taught to sympathize with them rather than hold them accountable for their choices. And we shall know that, when faced with similar choices in the future, they and every other industry will chose to honor the demands of the Executive rather than honor the demands of the rule of law.

Such a message undermines our national security and our way of life far more powerfully than any Al-Qeda attack. When Chris Dodd frames this as a fight to restore the Constitution, that’s not overbroad campaign rhetoric. It is the literal truth. For without respect for the rule of law, the Constitution has no meaning or purpose save as a tool for demagogues who revel in its power while ignoring its intent. And when Dodd calls on Democrats to remember that the public elected them to stop these abuses of our rights, to reign in lawbreakers rather than “thank” them, he also tells the truth. I can only hope Harry Reid and his colleagues on both sides of the aisle pay attention.

Stay tuned…