It seems pretty clear that the House Democrats have stood up and refused to give the telecom companies retroactive immunity for illegal behavior done at the behest of the Bush administration.
My question, though, is why is this issue being discussed? Let me explain.
Let's assume that any telecom company with plenty of money for lawyers gets at least competent legal advice, probably far better than that. Further, all the lawyers in the area plus all the senior managers in the telecom industry know about the FISA court warrants, the warrants have been around for more than 20 years. So, all the key players making the decision on wiretapping knew a path to immunity existed and what was needed to get immunity.
So, let's think about the lawyers' possible responses when asked about performing wiretapping without FISA.
- "Don't do it without immunity." This seems like the most likely thing any decent lawyer would say, since advising business leaders to go ahead would expose them, as it appears to be now, to significant liability. The whole point of FISA was to prevent exactly this case.
- "No way." This is clearly what Qwest's legal folks said.
From what we know now, we can conclude that most telecom compaines went along with the presidents plan. Why? I would argue that in either of the two cases above, the reasons might be very interesting.
In the first case, the business decision-maker(s) must have had some assurance from the government that they did have immunity. Given that the FISA statute was known to everyone, we can assume that the lawyers for the telecom companies insisted that this be in writing. I suspect that the american public would be interested to see that their government can give a priori immunity to companies for law-breaking.
In the latter case, the business decision-maker(s) must have decided to override their lawyers advice. Why? We can assume it's not the best interest of corporate leadership to expose their companies to significant financial liability. Even in the most self-interested sense, most of these folks have stock options tied to the value of the company--which would certainly fall somewhat were their long, expensive litigation forthcoming. So, why override the lawyers when you know there is immunity on offer via FISA warrants? If these cases ever come to court, one would expect the plaintiffs lawyers to ask this question and for the answer to be very illuminating.
Cynically, a guess on the last question might be that the government told the telecom companies it could shove retroactive immunity through congress and that the "goodwill" of the federal government would be valuable later. So, the business leader did this calculation: "This costs me nothing now. There is a decent chance it will cost me nothing in the future if retroactive immunity is granted. There is an excellent chance to get lucrative government contracts later." Viewed this way, the decision-maker worked totally in the interest of the firm and the against the interest of the public at large.
