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Granting Immunity Rewards Lawlessness
by 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."

In his 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 sought.

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 surveillance.

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.

All 48 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 occurs.

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 again.

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 Constitution.

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?