above, for articles in
Granting Immunity Rewards Lawlessness
Andrew P. Napolitano, Jurist
President Bush addressed
the nation in December 2005, a day after The New York Times revealed that for
several years he had been authorizing illegal wire taps on the telephones and
computers of thousands of Americans believed to be communicating with foreigners
who might wish us ill. Bush's attempted justification, however, was as legally
baseless as President Richard M. Nixon's when he similarly was caught. Asked,
years after his resignation, to justify his actions, Nixon crudely stated, "When
the president does it, that means that it is not illegal."
address, Bush said he had "authorized the National Security Agency, consistent
with U.S. law and the Constitution, to intercept the international
communications of people with known links to al-Qaida and related terrorist
organizations." Sadly, the president was wrong.
There was and is no U.S.
law, and there is nothing in the Constitution, that authorizes warrantless
wiretaps on Americans in the United States, no matter with whom they speak or
e-mail. In fact, both the law and the Constitution prohibit such surveillance
without a search warrant.
The governing law in 2005 was and still is
today the Foreign Intelligence Surveillance Act. Enacted in 1978 in response to
Nixon's use of the FBI and the CIA to spy on Americans, FISA makes it clear that
no surveillance of any American in this country may be authorized or conducted
by anyone in the government for any reason at any time under any circumstances,
except in accordance with the Fourth Amendment to the Constitution. And the
Fourth Amendment requires that no surveillance of an American may occur without
a warrant issued by a judge after the judge has found probable cause that a
crime has been committed.
FISA, on the other hand, permits surveillance
of foreigners, here or abroad, without a warrant for three days; then a warrant,
based on probable cause that the target is a foreigner, must be
Forty-eight lawsuits have been filed against telecommunications
companies, claiming that many Americans' conversations and e-mails with
foreigners have been monitored illegally. The plaintiffs are seeking redress
under federal statutes that guarantee the privacy of Americans and authorize
lawsuits against individuals and corporations who participate in lawless
Are the telecommunications companies that enabled the
government's spying legally liable? That depends on what the government told
them. The government may use the services of a telecom, with immunity for the
carrier, if it does so in accordance with the law: The government needs to
produce either a search warrant issued by a judge or certification from the U.S.
attorney general that the surveillance does not require a warrant.
lawsuits against the government and the carriers have been consolidated before
one federal judge in San Francisco. The lead defendant is AT&T, which won't
even admit that it conducts surveillance at the government's behest. The
principal witnesses are present and former AT&T employees who've provided a
federal district court judge with irrefutable evidence that the surveillance
When AT&T and the government moved to dismiss the complaints,
Judge Vaughn Walker held that there is a prima facie case here and that AT&T
will need to produce either search warrants or the government's certification in
order to defend itself.
Any such certification would be a remarkable feat
of legal draftsmanship. It would have to purport to justify legally and
constitutionally the use of telecoms to engage in secret warrantless spying on
Americans and to confer immunity upon those carriers. Come spy for us, in other
words, and we'll get you off the hook.
To prevent that certification from
being scrutinized and evaluated publicly, the Bush administration has asked
Congress to grant immunity to the telecom companies for the spying they've
already done. The House thus far has rejected it. The Senate passed legislation
that provides it. Never mind that the Constitution prohibits surveillance on
Americans, absent a search warrant issued upon a finding of probable cause.
Never mind that the Congress can't change the Constitution. Never mind the ugly
lessons learned from the Nixon era. The government is spying on us
Immunity doesn't enhance freedom; it rewards lawlessness. If the
government and the telecoms had obeyed the law, there would be no need for
immunity. Show me the legal justification for illegal spying on Americans, and
I'll show you a government that just doesn't care about the
Every government official takes an oath to uphold the
Constitution and the laws of the land. What kind of a country would we have if a
president can persuade people to break the law and then help them get away with
it? What laws will they break next?
Napolitano, is a former superior court judge in New Jersey. His most
recent book is entitled "A Nation of
letter to the Editor was originally published by the St. Louis
Posted March 17,
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