In an Op-Ed this morning, John Ashcroft advocates granting retroactive immunity to telecommunications companies that illegally assisted the NSA’s warrantless surveillance program by turning over their customers’ private communications to the government. “Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established,” he writes, “it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.” He claims that “[l]ongstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities.”

If longstanding principles of law protected the defendants, however, they wouldn’t need retroactive statutory immunity. In fact, government officials generally do not have the power to grant immunity from private actions by misinterpreting the law for the benefit of the wrongdoer. If they did, the president could unilaterally nullify rights created by Congress. Reliance on a misstatement of the law by a federal official doesn’t even protect a defendant from conviction in a later criminal proceeding in federal court, except where the defendant can show, among other things, that that the official’s interpretation of the law was objectively reasonable. See, e.g., United States v. Funches, 135 F.3d 1405, 1407 (11th Cir. 1998). As Judge Walker concluded in denying AT&T’s motion to dismiss illegal surveillance claims against it, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

Unbelievably, Ashcroft also asserts that it would be unfair to hold these companies liable, because “a telephone company simply has no expertise in the relevant legal issues.” If the lawyers working for a telephone company don’t have expertise in the legality of releasing private communications to the government, then nobody does.

Posted by David Gold