Subsidizing Corporate Crime and Rewarding Constitutional Abuses

Government handouts to corporations might seem untenable at a time when more and more Americans suffer every day from the impacts of a mounting economic crisis. Yet efforts to bolster the economy have largely taken the form of corporate welfare -- much like an appalling effort, in the closing days of the Bush administration, to subsidize corporate violations of the rule of law and individual liberties.

After the Federal Reserve's $30 billion bailout for investment bank Bear Stearns last month came the Senate's recent decision to set aside $25 billion in tax breaks for corporate homebuilders, and then last week's revelation of "a historic collapse in audits" of major corporations by the IRS. All three stories prompted outrage from observers noting the implications for American workers.

But even these insults pale next to another round of corporate welfare currently considered by Congress for the telecom industry -- a handout that, despite a smaller price tag, even more thoroughly degrades the public interest by both undermining national security and offending our nation's fundamental interests in transparency and the rule of law.

Subsidy Via Amnesty

Both houses of Congress recently authorized a constitutionally suspect domestic spying program that violates the Foreign Intelligence Surveillance Act of 1978. The Senate also approved, although the House patriotically rejected, a further give-away to telecom companies.

Unlike loan guarantees for Bear Stearns or tax subsidies for condo developers, the Senate's handout to telecom companies including AT&T, BellSouth and Verizon takes the form of an amnesty: retroactive immunity from nearly 40 pending lawsuits alleging that their participation in the Administration's surveillance activities illegally (and possibly unconstitutionally) invaded the privacy of millions of law-abiding Americans.

Given the pervasive secrecy surrounding government surveillance, concerned citizens across the country initiated the litigation largely to learn more about the government's activities. But even the limited information known to the public suggests that the Senate bill effectively subsidizes corporate crime, encourages secrecy, denigrates transparency, offends the rule of law, rewards constitutional subversion -- and also undermines national security.

Secret Government and Censorship

First and foremost, the so-called "Terrorist Surveillance Program" (TSP) is the mere tip of an iceberg that remains mostly secret.

Enacted over the dramatic objections of former Attorney General John Ashcroft, the TSP is the only domestic surveillance program confirmed by government sources. Other programs -- for which potential challenges could loom in the future -- continue to operate in secret, including a data-mining scheme run by the National Security Agency (NSA) that reportedly duplicates the "Total Information Awareness" program affirmatively rejected by Congress.

In late 2005, The New York Timesexposed the TSP in an investigative report that the White House stonewalled for over a year and attempted to censor. Like the revelation of the Nixon administration's (far less ambitious) surveillance operations, the story deeply shook the Washington establishment. However, in sharp contrast to the Watergate era, the contemporary abuses have only grown worse since their revelation.

The Watergate scandal led to the formation of the Church Committee, the FISA statute (for whose violations telecom companies now seek a public subsidy), and the threatened impeachment and resignation of the President. In contrast, the revelation of today's domestic spying scandal culminated in congressional permission for previously illegal acts committed by executive officials.

Even before evading accountability for secret programs violating the rights of millions of Americans, Administration officials threatened to prosecute the journalists who exposed their abuses to the public. The reporters pursued both ends and means at the core of the First Amendment, and even delayed publication of their story for over a year based on objections fabricated by the administration. Yet they were framed as criminals, rather than guardians of the public interest.

Transparency and Checks & Balances

Among the principles protected by the Constitution, few compare with the transparency sought by the First Amendment. The reason is simple: government secrecy impedes democracy.

Controversial government programs are theoretically restrained by checks and balances, like legislative oversight and judicial review. But neither Congress nor the courts have a way to check a secret program.

Senator Jay Rockefeller (D-WV) faced this problem when reviewing the TSP in a closed 2003 briefing. After the meeting, he wrote to Vice President Dick Cheney to "reiterate [his] concerns," noting that "the activities we discussed raise profound oversight issues," but that, because he is "neither a technician nor an attorney," his "inability to consult staff or counsel on [his] own" rendered him "unable to fully evaluate, much less endorse these activities."

Nor is Congress the only branch stymied by secrecy. Domestic spying faced no legal challenges in court until 2006 only because, until then, the TSP had been secret. And the Senate's bill effectively forces courts to dismiss the numerous suits filed after the program was revealed.

As Sixth Circuit Judge Damon Keith wrote in another context, it is because "[d]emocracies die behind closed doors....[that] the Framers of the First Amendment....protected the people against secret government." But secrecy pervades the TSP's history, animates the Administration's threat to prosecute the journalists who courageously exposed it, and continues to hide from scrutiny the government's other unconfirmed -- but ongoing -- surveillance programs.

Each obstruction violates bedrock democratic principles by denying the opportunity for either a legislative or judicial check. Put another way, executive secrecy leaves the President unrestrained by precluding other branches of government, as well as civil society, from pursuing checks and balances.

Secret programs recall those of former Soviet bloc countries during the era of totalitarian rule. The Constitution -- and our Republic -- has been turned on its head.

Executive Aggrandizement vs. The Rule of Law

Setting aside how secrecy offends democracy, domestic spying also assaults the rule of law on multiple fronts and aggrandizes executive power.

At the outset, the Senate's immunity provision effectively declares the FISA law void -- but only after the fact of violation, and only as it pertains to specific violators. Such procedural arbitrariness makes a mockery of the Rule of Law, even setting aside the substantive illegitimacy of rewarding criminal behavior.

In addition, the TSP shares the same legal pedigree as the infamous "torture memo" recently repudiated by Attorney General Mukasey. Its concoction roiled the executive branch, inspired resistance culminating in threats by senior officials to resign, and bears the fingerprints of the same arch-conservatives whose view of executive power bears no limit. The program embodies a deeply controversial theory attacked from across the ideological spectrum.

The only court to publicly examine the program on its merits declared the TSP unconstitutional, and a separate ruling by a secret court struck down portions of the program, although its precise contours remain unknown. A conservative appellate court dismissed the first ruling on a legal technicality, and since the Supreme Court rejected a petition to appeal the case, the TSP has been effectively insulated from judicial review despite grave concerns about its legal basis.

The TSP stood on thin legal ice -- until Congress lay itself (and the American people) at the President's feet.

Thus, a scheme invading the privacy of millions of law-abiding Americans continues unchecked, despite the constitutional abuses implicit in warrantless surveillance. Private suits pending against the program's telecom enablers present the only remaining opportunity through which to check the administration's surveillance activities, especially now that Congress has authorized them to continue.

Moreover, unless suits against the telecom companies are allowed to proceed, the full scope of warrantless surveillance -- and the extent to which it may have been abused by an administration already known for politicizing various institutions, including the Justice Department and even the Centers for Disease Control -- may never be known.

Finally, the Bush administration's other surveillance programs stand effectively immune from judicial review or congressional oversight as long as they, too, remain secret. Regarding unconfirmed secret data-mining by the NSA, Senate Intelligence Committee member Ron Wyden (D-OR) recently argued, "There's not been as much discussion in the Congress as there ought to be."

Especially given this lack of oversight, private interests should be discouraged from compromising individual liberty interests. The Senate bill instead invites them to disregard their customers' privacy with impunity.

Immunizing telecom companies for enabling the TSP thus sends the wrong message to other companies that, through other secret programs, continue to help authorities spy on Americans -- as well as those, like Qwest, that tried to protect their customers from prying government eyes.

Dragnets vs. Real Security

Transparency, democratic checks & balances, and the rule of law are not the only values undermined by domestic spying. The TSP also hinders counterterrorism efforts. Put simply, sweeping domestic surveillance undermines security by inundating analysts with false leads.

Throughout the debate about re-authorizing FISA, Administration apologists have falsely claimed that domestic spying is necessary to protect the country from a future terrorist attack. Intelligence analysts have repeatedly rejected such red herrings.

Earlier this month, senior counter-terrorism officials and intelligence analysts from agencies including the Department of Homeland Security, the FBI, and the National Counterterrorism Center hosted a briefing on their assessments of domestic terrorism. One analyst captured a point of consensus by explaining that "having too much data is as much a problem as having too little."

According to The Washington Post, "Even with 38,000 employees, the NSA is incapable of translating, transcribing and analyzing more than a fraction of the conversations it intercepts." The New York Times confirms that, in the wake of the 9-11 attacks, "F.B.I. officials repeatedly complained to the [NSA], which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches...that the unfiltered information was swamping investigators."

Domestic surveillance not only violates several constitutional principles and tears at the very fabric of our constitutional Republic, but also fails to achieve its purported ends.

Government Handouts to Repeat Recipients

By granting immunity for participating in this ineffective and potentially illegal scheme, the Senate offered the telecom industry -- which is no stranger to government largess -- yet another corporate handout.

In 2004, Philadelphia announced a municipal wireless plan enabling wi-fi service for its residents at a fraction of the retail cost. The plan enhances efficiency by leveraging economies of scale and encouraging economic development, while also seeking equality by diminishing the digital divide.

But, lobbied by telecom companies, the Pennsylvania state legislature banned other cities from following Philadelphia's lead. The ensuing state-by-state march against municipal wireless began shortly after Congress passed the 2003 Medicare legislation, which similarly maximized health care costs by prohibiting collective bargaining by government purchasers. Each measure represented an enormous -- though politically covert -- give-away to corporate interests.

The TSP itself entails corporate handouts to telecom companies. As security analysts monitor, review and track the telephone calls of millions of Americans, they incur millions of dollars in fees. Beyond those charges known to the rogue authorities who oversee the program, companies also have at least sometimes overcharged the government, and some law enforcement authorities have embezzled funds.

Congressional Co-optation

After enabling the most secret and intrusive government program since COINTELPRO, running roughshod over the Fourth Amendment, expanding Presidential power without congressional or judicial authorization, and reaping immense profits while doing so, telecom companies now demand immunity from law-abiding Americans seeking to vindicate their rights.

And instead of responding assertively to defend the Constitution -- or even simply maintaining the statutory protections erected by the Watergate-era Church Committee -- Congress instead perversely debates whether retroactive immunity is necessary to encourage such corporate crime and constitutional subversion in the future.

Corporate welfare may be offensive in the abstract, but it is even more galling when supporting chronic recipients, and downright odious when used to reward constitutional subversion.

The House bill is the lesser of two evils. Like its Senate counterpart, it abdicates Congress' responsibility to check the executive and sacrifices constitutional liberties violated by warrantless surveillance. But by allowing in camera (i.e., sealed) judicial review of classified evidence, it at least leaves the courthouse doors open, while allowing corporate defendants to challenge their accusers without violating the Administration's secrecy.

Policymakers have already abandoned the freedom sought by the framers of the First Amendment, and their successors who passed FISA, by authorizing domestic surveillance in the first instance. But the suits against telecom companies enabling surveillance should proceed. With corporate welfare having already richly padded the telecom industry's pockets, it should not receive from Congress yet another subsidy for abusing Americans and the Constitution.