The program's guest, a justice department flunkie named Kenneth Wainstein (his official title is Assistant Attorney General for National Security, but in the Bush administration that's like saying Deputy General of Whatever I Want), defends the act on the grounds that immunity is warranted because justice department officials (which ones? He doesn't say) met with the telecoms and assured them everything was legal.
At least four questions come immediately to mind. First, the telecoms all have big, highly regarded, well-staffed and well-paid law firms to decide what's legal for them to do and what's not. They consult these firms daily, if not hourly, on exactly such matters. Nor are such firms accustomed to taking justice department opinions prima fascia in any other regulatory matter — in fact, they're quite accustomed to fighting justice department opinion about their clients' behavior. So the question really isn't, and shouldn't have been, what the justice dept said about the legality of the actions, but what the telecoms' own duly retained counsel said. That's what counsel is there for, after all.
Second, since when has the advice of counsel of any kind been an excuse for breaking the law? Imagine the murder trial in which that logic were to come into play and you'll see what I mean. Legal counsel is not a deflection of guilt. This is what trials are for. If the justice department believes their advice was legally sound, let juries hear the cases, evaluate the evidence, and render a verdict.
Third, not all telecoms complied. Quest, for one, famously refused. At the least this indicates divided opinions on what the telecoms' options were at the time — that legal opinions could vary, that is, regardless of what the justice department said. When asked about this by a caller to the radio program, Wainstein says he prefers "not to get into who thought what" about what was legal and what wasn't — and then he launches into a lengthy disquisition on how the telecoms (other than Quest, that is) thought what they were doing was completely legit because the JD told them so. In other words, he has nothing to talk about but what people thought at the time about legality. He just doesn't want to talk about Quest.
Fourth, there's an easy way around all of this, and it's called the warrant. Had the administration, or the Justice Department, or whomever really wanted to gather information, all they needed to do was get a warrant. This means nothing more than providing a FISA judge with the evidence that has led Justice to suspect the individual they want to spy on (that is, probable cause — whatever aroused their interest in the first place). The FISA court is notoriously willing to issue warrants; they've turned down less than 1% of such requests in the 30 years of the court's existence. Any prosecutor or DA — not to mention gamblers — would be happy with those odds.
Warrants, once issued, are obligatory; compliance on the part of the telecoms would not have been an option, and thus would not have exposed them to liability. Even pesky Quest would have been forced to comply. And if justice department officials had time to brief the telecoms' counsel, surely they had time to prepare a warrant petition.
The fault for the telecoms' current predicament thus lies not with Congress but with the administration and with Justice, who created the dilemma by refusing to follow due process and get surveillance warrants; and with the telecoms' own executive and legal departments, who have no excuse for not knowing that justice department assurances are not legally binding in any court in this land (if they were, it wouldn't take an act of Congress to exculpate the telecoms now).
(As a side note, it's worth remarking the irony in the same men who make a habit of shrilly decrying "activist judges" who "legislate from the bench" now attempting to have similar legislation originate from behind the desks of justice department attorneys.)
Warrants are key to this mess, in no small part because they are key to the American notion of individual liberty in the face of governmental authority. In the framers' minds, the primary threat to the social context they wished to nurture was the arbitrary and unchecked exercise of power. That a political figure — a king, a president, a governor — should be able to act unilaterally, capriciously, and without review against private citizens was the very definition of tyranny in their eyes (and in their experience, lest we forget), and it was anathema. There is no greater violation to the concept of liberty enshrined in the Declaration and the Constitution. The remedy — also enshrined — is the law, which requires that executive action be checked by independent bodies known as courts, which independently review executive imperatives against the law of the land and independently permit or forbid action on that basis, explicitly privileging, in cases of dispute, the rights of the private citizen above those of the goverment. There is no clearer statement of this construction than in the 4th amendment, which stipulates that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.As the framers understood, the instant an authority can act without review against its citizens, that authority is absolute. That authority is a tyrant. So, for example, a president who claims the capacity to declare, unilaterally and without review or recourse by any independent body, a citizen of this nation to be an "enemy combatant" — a term with no legal definition or history, not that it would matter even if there were one, since in the president's construction no one is permitted to examine his designation for compliance with existing statutes — and to place that citizen in custody secretly, without a hearing, without proferred charges, without access to counsel or any other aspect of the judicial process, for an indefinite period of time.
Look at it this way. Under the authority the president claims for his office, there is, in theory, nothing whatever to stop him from declaring Barack Obama an "enemy combatant" tomorrow. He could then, by his claim, seize Senator Obama and incarcerate him at any place of his, the president's, choosing, with no hearing of any kind. By the president's contention, no one and nothing could stop this. The president has only, he declares, to utter the words "enemy combatant" and Senator Obama — or anyone else — could be made to disappear. No evidence need be produced to justify the claim; no judge need be persuaded, no tribunal convinced. The whim of one man is enough. There is nothing in the administration's construction to prevent the president from defining "enemy combatant" as anyone who mounts political opposition against him or against the Republican party; there is nothing to keep him from having them jailed; there is nothing to keep him from having their funders jailed, their campaign operatives, the men and women who come to their rallies. Any and all of these, according to the president's logic, could be removed not just from the political landscape but from the judicial landscape, which is to say from the human landscape. It is the legal foundation for dictatorship, and it is exactly what the founders composed the fourth amendment to prevent.
This is what I think of when I hear people declaim that there's no difference between the parties. It's what I think of when I hear supporters of Obama claiming they'll vote McCain or abstain if the nominee is Clinton; it's what I think of when I hear supporters of Clinton saying the same. I think of the signing statements, in which the president declares — openly, on the record — his intent to ignore or defy the duly passed laws of the land. In which he reserves this authority for himself, for his office, against all constitutional rebuke. I think of waterboarding, and I think of it being applied not to vicious terror suspects in the fevered heat of a fight in some foreign land but of it being applied here, at home, on US soil, to US citizens who have been labelled enemies of the state irrevocably by the unchallenged and unchallengeable whim of a single man. I think of states like Chile and Argentina, Congo, Egypt and now Russia, in which to oppose the state in any fashion is to risk prison or death — in which men and women can vanish, for decades, for ever, as a side effect of expressing conscience.
Are these things that Bush would do? I don't know. I don't think it matters. The framers didn't think it mattered, either — whether one man or another had proclivities toward tyranny. Men as a whole have such a proclivity, they thought; and history has confirmed it. Prevention cannot lie in the compassion of one man's soul. Prevention must lie in the mechanics of the system itself — in the floorboards, the walls. It must be fundamental, inalienable. It must be the law. And the law must be binding for everyone, or else it must be nothing at all.