NY Times lets 'conflicted' Ashcroft pen pro-immunity op-ed for telecoms Nick Juliano

Published: Monday November 5, 2007



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Print This Email This Former Attorney General John Ashcroft says telecommunications companies that helped the government eavesdrop on Americans should not have to face costly lawsuits charging the companies with acting illegally and mishandling private customer data. Arguing in favor of a controversial telecom immunity proposal that is being debated as part of legislation that would update the Foreign Intelligence Surveillance Act, Ashcroft acknowledged there are still legal questions about President Bush's warrantless surveillance scheme. But he said private companies should not be held to account because they believed they were acting legally. As long as the government said, 'Trust me,' that was enough for the telcos. "Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the companys, to deal with the consequences if they are wrong," Ashcroft wrote Monday in the New York Times. "To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials." After leaving government in 2005, Ashcroft began a lobbying and consulting firm. The Ashcroft Group is among several prominent DC firms representing telecommunications giant AT&T, Roll Call reported earlier this year. The Times acknowledges the potential conflict of interest in an editors note, but it obviously was not enough of a concern to keep editors from running Ashcroft's column. Ashcroft does not personally represent a company targeted by about 40 lawsuits that have been filed nationwide. In the essay, Ashcroft takes a far rosier view of the president's surveillance program than he apparently did in 2004 when the Justice Department was unable "to certify [the program's] legality," as Ashcroft's former deputy, James Comey testified earlier this year. From his sickbed, where he lay recovering from surgery, Ashcroft resisted entreaties from the White House to override the concerns and re-certify the warrantles spying. The dramatic hospital-room scene was detailed in Comey's testimony. On Monday, Ashcroft said that selling the lawsuits as a means to hold the governments and its industry enablers accountable was all well and good, but the bottom line was any disclosures about the program would aid America's enemies. "Although the lawsuits are couched in the language of accountability and the publics right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work," Ashcroft wrote. "For domestic purposes, proper accountability already exists  through the peoples elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully." The former Attorney General also declared that immunity is a good idea because the Senate Intelligence Committee voted for it, and if all the brave telecoms were doing was trying to fight the terrorists, well that's all that matters. "Assuming that the countrys communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators," he wrote. "The Senate Intelligence Committee acted wisely. The full Congress should follow its lead." But let's not get ahead of ourselves here, say some bloggers who have been following the FISA debate. Despite Ashcroft's claims that immunity would be limited to telecoms that believed their actions were authorized or if they didn't do what lawsuits allege them to have done. "But that's one of the tricks with this surveillance--the telecoms did something, and it's not entirely clear we've described what they did properly. Moreover, there's the presence of telecoms that recognized the form of the requests was illegal--for some reason, Qwest recognized the assurances that the activity was authorized to be dubious," writes emptywheel. "If the government can ask for data and use it in any fashion they want (or ask the telecoms to use it in any fashion), what does that say about the creeping surveillance?" emptywheel continues. "It demonstrates precisely the problem with surveillance that takes place independent of any review: the government can do anything and just claim it's legal. Even if it violates clear laws like FISA." Matt Stoller, writing at Open Left, says the telecoms lobbying firepower makes them a daunting foe in legislative battles. "Telecom companies own DC, from Al Wynn to Jay Rockefeller John Ashcroft," he writes. "It's just that simple."



