Illegal Surveillance Before 9/11

Today the National Journal (subscription link) reports that the Bush administration came to telecommunications companies, including Qwest, in the first month of Bush's term in office, seven months before 9/11. At the time, Qwest was asked to share information about their customers without a court order. Qwest refused, citing multiple laws that prohibited them from honoring request. The NSA solicited other telecoms as well; some agreed to turn over the information without even a court order:

Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order. [Emphasis added]

This gets to the heart of why retroactive immunity is such a pernicious idea. Companies were willing to break the law to participate in government surveillance programs -- there is no "good faith" defense of their actions, as we see three different courses of actions taken by the telecom companies who received similar requests from the Bush administration. Note that I don't think actions done in good faith by telecoms should preclude them from being subject to lawsuits -- there may be a defense available to them in these suits. Congress does not need to inject itself in pending cases in the court system.

We're still learning what these companies did and what the Bush administration asked of them. Pending legal cases against the telecom companies are the best way to find out the answers to these questions. Retroactive immunity would make this impossible.

Beyond its relevance to telecom immunity, this National Journal story establishes quite clearly that the Bush administration has always had ambition to avoid the laws governing electronic surveillance of Americans. 9/11 was not the cause nor the first instantiation of their efforts to expand their powers to spy on Americans. The more we learn, the more lawless this administration is revealed to be. As such, granting them more power to use America's surveillance is an idea that comes as nothing less than an invitation for further invasions of the privacy and rights of the American public.

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