One of the striking things about the debate over retroactive immunity for telecommunications companies is how unpersuasive proponents’ arguments are. There’s just not much in the way of a defense — telecoms turned over access to phone records and emails to the Bush administration without a warrant. That’s illegal. They got caught.
And now, the White House and far too many lawmakers are prepared to make the decision legal, six years after the fact. Two weeks ago, the WaPo editorial board weighed in on Bush’s side of the debate.
House Democrats are understandably reluctant to grant that wholesale protection without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.
It’s a confusing argument. We know that the telecoms weren’t just motivated by “patriotism” during a “difficult” post-9/11 period, but were in fact cooperating with the NSA long before the 2001 terrorist attacks. We know this, of course, because the WaPo said so in a front-page story that ran the day before the paper editorialized on the subject.
Indeed, this same front-page article suggests the telecoms that were playing ball with the NSA weren’t necessarily driven by national service, but rather the corporate desire to secure lucrative contracts that were in jeopardy unless the companies obliged administration requests.
So, the WaPo editorial board tried again today.
As we have said, we do not believe that these companies should be held hostage to costly litigation in what is essentially a complaint about administration activities.
Does this make any sense?
First, litigating class-action lawsuits may indeed be “costly,” but not terribly so when it comes to the companies in question.
AT&T’s pre-tax net income in 2006 was $10.8 billion, and after-tax income was $7.3 billion. After law school, I was a litigator at the highest-charging corporate law firm in the country, and the absolute most I ever saw a single set of cases generate in fees was $1 million per month — during the months when the litigation was fully active (which is rare). And even in the most intensely fought cases among the largest corporations, the fees were almost always substantially less than that.
Besides, as a matter of legal principle, it’s not exactly a persuasive pitch. “Yes, your honor, we broke the law and got caught, but that shouldn’t matter because my legal fees cost a bundle.”
Second, the Post believes the principal concern here is over “administration activities.” That’s not right, either. These companies, which have teams of very capable lawyers on the payroll 24-7, were approached by the NSA to violate customers’ privacy rights without a warrant. They turned over the records freely. Obviously the administration should be held responsible for its sweeping surveillance efforts, but as the old saying goes, it takes two to tango. The Bush gang wouldn’t have exceeded its authority had the telecoms not gone along.
Ultimately, maybe the telecoms’ lawyers can make a case. Perhaps they can go to court and argue that the company’s executives were misled by Bush administration attorneys, which frees them of culpability. I don’t buy it, but who knows; maybe it’ll work in court.
But therein lies the point — let the judicial process work. If the telecoms’ lawyers can prove the companies aren’t liable, mazel tov. But what Bush, some lawmakers, and the WaPo editorial board argue is that Washington should short-circuit the legal process, allow Congress to act like an activist judge, and throw pending court cases out.
That they can’t come up with a coherent argument why is telling.