Third Way Dispatch

Think back for a moment to the days after 9-11, to the range of emotions we all felt: horror, sadness, anger, frustration. But we felt other things as well: determination and patriotism. We were resolved as a nation that no band of two-bit thugs was going to attack this country and murder Americans without us damn well doing something about it.

Now, imagine that you were specifically asked to do something about it and were told that your actions would hold the lives of innocent Americans in the balance. Imagine that you were Mary Smith, a senior executive of a telephone company and that an FBI agent came to you with a letter that asked for your help in tracking down terrorists. The letter assured you that the President and the Attorney General certified that what they were asking you to do was legal. Imagine that the FBI made it clear that if you failed to cooperate, Americans could die.

What would you do? Do you assist the government based on their representations that the help was both legal and urgently needed, or do you decline and risk the consequences?

Not everyone would have made the same decision, but we would submit that, given the circumstances in the wake of 9-11, many Americans would have agreed to help.

Now, fast-forward to today. The telecom companies are being sued on allegations that they helped the government invade privacy and violate the rights of private American citizens. The question is whether to allow these suits to go forward.

We have argued that they should not – you can read our fuller explanation here. In arriving at that judgment, we have relied on three main principles:

The first is fairness and due process. The evidence against the companies is classified. They are being asked to defend themselves without the ability to offer the evidence that may prove their innocence of wrongdoing. Sound familiar? That’s exactly what’s happening to the prisoners at Guantanamo Bay. We have long held that those proceedings are travesties of justice because the defendants cannot mount a defense in a case involving secret evidence. That’s not due process, and it should not be weighed any differently for cases against terrorism suspects or against the telecom industry.

The second principle is the value of representational government. The potentially exculpatory information in this case is beyond top secret. It falls under a category known as “eyes only,” which prohibits even those with top secret clearances to view the documents. If Hillary Clinton or Barack Obama wanted to see them they would be denied. But the elected members of the Senate Intelligence Committee have seen them. When they took a look at all of the secret evidence – the letters, the documents, the testimony of key players – they voted 13-2 in favor of immunity. Because we cannot see the evidence for ourselves, we must decide whether to place our trust in the judgment of those who have. Among this group were some of the most unimpeachable progressives in the Senate, like Sheldon Whitehouse, Barbara Mikulski and Chairman Jay Rockefeller. These members played a role not too dissimilar from a grand jury when they emphatically decided that this case should not go to trial. We decided to trust in their judgment.

In addition, two people who were appointed to act by the Congress have reached the same judgment. As 9-11 Commission Chairman Lee Hamilton and Commissioner Bob Kerrey have both written persuasively, it is absolutely vital that American industry agree to help in terrorism investigations when they believe in good faith that it’s legal and important for them to do so. If the telecom companies are left holding the bag for the government’s misconduct here, we worry that future companies – be they phone companies, rental car agencies, flight schools or gun stores – might refuse to help track down terrorists and leave our nation at risk.

The third principle is holding the proper party to account. There is no question that the private sector must be required to act legally and responsibly, and when they don’t they should be punished. In these cases, however, we believe that the wrong defendant is in the dock. It is the Bush administration and government actors who are responsible for the violations of civil liberties and the invasions of privacy that the lawsuits allege. It was the government who took the information and misused it, without telling the industry how or why. It is the government that can choose to mount a real defense by declassifying the material. And it is therefore the government – not those who thought they were doing their patriotic duty to assist the government – that should be held to account.

We waded into this debate mindful of the passions on the other side. We know that a huge swath of the progressive community disagrees with us on this point. But while we share their outrage and demand for justice, we chose to enter this fray because we believe that important principles are at stake here. We hope you’ll read our new memo that more fully lays out our rationale and choose for yourself. FISA and Immunity