Left Side of the Aisle #78 - Part 2

Outrage of the Week: Supreme Court lets telcomms off the hook

Here's the background: During the administration of George Bush, known to one and all as Shrub, the White House engaged in massive and illegal warrantless surveillance of electronic communications - that is, phone calls and email. This was done with the assistance of several of the giant telecommunications companies, such as AT&T and Sprint. AT&T even built a separate room with the single purpose of enabling the National Security Agency to have total access to all of its customers' communications. The surveillance was illegal and what the companies did in support of it was illegal. There were multiple laws in place at the time saying so.

Neither the Bush nor the Obama administration would prosecute any of this criminality, so various organizations concerned with civil liberties and privacy rights, such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), filed civil suits against the government and the corporations.

Initially, the telcomms were losing in court. Not too surprising, since they'd been caught red-handed and their claims that they acted in the "good faith" belief that it was all legal just couldn't be (and weren't) taken seriously.

But of course these giant corporations couldn't actually be held responsible for what they did illegally - especially since cases against them for what they did illegally might reveal more of what the government did illegally. So in 2008, Congress passed a law giving those companies retroactive immunity from all civil suits - a bill passed, incidentally, with the support of then-candidate Barack Obama, who had previously promised to lead a filibuster of any such legislation.

The groups suing the telcomms saw their cases ripped away by this absurd law. So they filed claims that the law was unconstitutional in that it both violated the separation of powers and denied customers of their right to redress without due process of law.

I mean, consider what this means: By the logic of this law, in the face of any offense against you, any crime committed against you, any violation of your rights, the government could simply on the one hand refuse to prosecute and on the other retroactively bar you from any civil action, leaving you with no recourse. It means the government can essentially immunize anyone, any group, any corporation it wants from all legal consequences for its behavior.

It seems a ridiculous notion - so of course the plaintiffs, those who filed the suit, lost. Courts embraced the law in order to avoid having to deal with the sticky issues involved, ones that could force the courts to actually question the conduct of the Executive Branch, something courts are loath to do.

Last December, the Ninth Circuit Court of Appeals let the suits against the government proceed, but it dismissed the arguments for reinstating the suits against the telcomms, relying on the law for retroactive immunity.

Why this comes up now is that last week, the Supreme Court refused to hear an appeal of that ruling, putting a final end to any hope of holding these giant, law-breaking corporations responsible for their actions.

So at the end of it all, the giant corporations that illegally helped with illegal government spying simply walk away untouched. And that's not even the biggest outrage of this. No, it's this: One of the reasons, the really big argument, for granting retroactive immunity - and the central argument the Obama administration used in urging courts to dismiss the suits - was the assertion that the government wanted to encourage cooperation in future such efforts.

Now bear in mind that if what the government wants to do is legal and what it wants the telcomms to do is legal, there is no problem. The issue does not arise. So what the government - what the Obama administration now - is actually saying here is that it wants to be able to illegally wiretap and it wants the corporations to illegally cooperate in illegal wiretaps, with no risk whatsoever of any criminal or civil consequences to anyone involved in this illegal activity. That's what's being said.

And if that doesn't strike you as outrageous, well, there is no hope for you.

Sources:
http://www.reuters.com/article/2012/10/09/us-usa-court-telecom-idUSBRE8980UV20121009
http://www.guardian.co.uk/commentisfree/2012/oct/10/supreme-court-telecoms-win-immunity
https://www.eff.org/files/nsa/statutes.pdf