Shakespeare’s Dick the Butcher, in Henry VI, proposed to kill all the lawyers as a first step toward revolution.
President George W. Bush today insisted that Congress immunize telecommunications companies for invading Americans’ privacy via illegal wiretaps. Or else he’ll veto legislation for legal wiretapping going forward.
The rationale for the retroactivity angle? That the litigation process could reveal information about the wiretapping process, allowing terrorists to adapt. That the government already told the companies they had immunity. And, finally, that the companies face "billions of dollars of lawsuits" and that class action lawyers "see a financial gravy train".
Blawgletter takes the first reason at face value. We, too, want terrorists not to know how to evade surveillance. At the same time, we’d like a respectful explanation of why lesser measures can’t achieve the same goal. And why disclosing past methods — to the extent the government hasn’t already revealed them — would tell terrorists much about current and future methods.
On the second point — that the feds assured the companies about the legality of he wiretaps — we’d like to see some evidence. The federal judge overseeing the multi-district litigation didn’t buy it. And, if the government did in fact grant effective immunity already, why on earth do we need a statute saying the same thing?
The last reason — that pesky class action lawyers aim to profit from enforcing laws against warrantless wiretapping — shifts the focus from what the government did to the lawyers doing their job. Why the president threw it in eludes us. Sure, some people might oppose damages to class members and fees to lawyers even if they prove that the government engaged in wrongdoing, but we don’t see what that has to do with future wiretapping. Congress can pass a law on future wiretapping without letting AT&T off the hook for past illegal wiretapping.
Nor do we know why the government doesn’t just indemnify the telecommucations companies directly if it feels so passionately about protecting them.
We just don’t think that the arguments for tying immunity for past conduct to approval for future wiretapping methods hold up.
Which leaves the question: Does the administration’s intransigence reflect a genuine desire to head off frivolous litigation — or a hope that it can avoid judicial scrutiny of an apparently slap-dash, way too broad, ineffective, expensive, hurtful, and embarrassing abuse of power?
If Congress goes along, we may never know the true answer.
