Partial Amnesty for Telecommunications Companies

Would you have broken the law if the President had asked you to, after 9/11?  To me, that is what happened with AT&T and the other telecommunications companies.  I am curious about how much information on how many people the Bush Administration actually gathered without a court order, and I agree that legal action is probably the best way to force this disclosure.  However I do not think it is fair to the shareholders of AT&T to hold them financially liable for their management’s decision to do something that President Bush said was a matter national security.  A limited immunity, protection against punitive damages and attorney’s fees, would allow the courts to be used to force disclosure of the extent of the requests without exposing the telecommunications companies to significant financial risk.

I have to say, I have been curious about how, and how much, communications the government actually collected from the telecommunications companies.  People in Information Technology can be lazy, and data storage space is cheap.  All forms of communications are now turned into data packets – phone calls, emails, videos…Did the government actually receive just the phone calls of a small number of people?  Or did the government have the telecommunications companies capture and turn over every data packet going though certain data exchange points, with the idea of sorting through it after the fact?  Is it possible that the Bush Administration actually received captured phone conversations of millions or tens of millions of people, just because it was easier?

Wanting to know the answer is not a matter of wanting to embarrass President Bush.  In the aftermath of 9/11, he did what he thought best to protect the country – he did what he thought was right at the time.  That is all we can ask of any President, that he or she do what they believe to be best for the country.  But it is critical that we are able to know the President’s decisions, even after the fact. Well-run businesses continuously evaluate inputs and outcomes to identify opportunities for improvements. The key to continuous improvement is good information – a business has to understand its processes, collect meaningful information and tie outcomes both good and bad back to those processes.

The same holds true for government.  Our democracy and bureaucracy work better if we continually collect good information on the actions of government and the outcomes of those actions.  This includes monitoring and evaluating how true we are to the principals of democracy and our Constitution.   It is important that our government be transparent so that we as citizens can be sure it is working properly and within the bounds of the law.  Sometimes Presidents do overstep the bounds of the Constitution.  President Lincoln arbitrarily arrested Northern opponents of the Civil War.  After the fact, the Supreme Court eventually held those actions unconstitutional.  If in fact President Bush overstepped the bounds of the Constitution, he is in good company.

It would be nice to think that the political process itself will bring to light any overstepping.  But President Obama has his hands full just running the country; there is little incentive or upside to delving into possible mistakes made some years ago.  The discovery process that is part of a civil action through the courts still seems like the most likely way of ensuring that the actions of the President are disclosed.  Again, not to embarrass him, but just to make sure we know.

However I also don’t think its fair that the shareholders of AT&T and the others should have financial exposure because the company’s management said yes to a request from the President.  In retrospect, it might have been the wrong call for management to make, but it was a judgment call.  If the President had asked me to break a law in October 2001, I probably would have done it too.  I’m pretty sure I would have given the President the benefit of the doubt.

It’s hard for me to imagine there were any actual damages that resulted from the warrant-less wiretaps, that it actually cost anyone a job or caused them to lose their savings.  From a liability standpoint, the concern is over the punitive damages and possible attorney’s fees, which can be disproportionate to the size of any actual harm caused.  Offering AT&T limited immunity, protection against punitive damages and attorney’s fees, seems a reasonable compromise.  Well-intentioned attorneys can still pursue civil action, pro bono, and we can know just what President Bush ordered.  But the shareholders of AT&T would not be financially penalized for the actions of management, who when all is said and done were just trying to be good Americans responding to the direction of the President.

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