Free With Liberty and Justice for Some by Glenn Greenwald Page A

accusations against the telecoms, FISA and the other laws provided full-scale amnesty in the event that telecoms could show that they acted in good faith—that even if they violated the law, they did not do so knowingly. Section 2520 of Title 18 of the U.S. Code created as broad and absolute an immunity provision as could be imagined: it provided that a demonstration of good faith by the telecoms “is a complete defense against any civil or criminal action brought under this chapter or any other law.” In other words, under the laws in place at the time the illegal spying began, the only situation in which telecoms could be sued or prosecuted for working with the government was when they clearly and knowingly violated their legal duties to their customers and the country by enabling plainly illegal government spying.
    When the Bush administration originally approached the telecoms about cooperating with its new warrantless eavesdropping program—and there are credible reports that some of these discussions took place prior to 9/11—a small handful of the companies emphatically refused. They did so based on their conviction that the proposed program was so obviously illegal that taking part in it would leave them outside the scope of the statutory immunity rights conferred by Congress.
    One company that refused was Qwest. To see just how reckless most telecoms were in deliberately violating the law, consider what motivated Qwest’s refusal, as reported by USA Today .
    Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order—or approval under FISA—to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used….
Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.
     
    But the rest of the telecom industry had no such qualms about FISA. In fact, the government even attempted to pressure Qwest by telling the firm that “it was the lone holdout among the big telecommunications companies.” Most telecoms had readily agreed to cooperate fully with the government’s illegal program, lured by the mammoth profits to be earned from the growing surveillance state. To induce Qwest to capitulate, Bush officials threatened it with the possibility of losing government contracts. As USA Today explained: “In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.”
    As the Qwest case demonstrates, telecoms had the option to refuse to participate in the NSA program and thus abide by the law. Yet most of them chose not to. The evidence seems clear that virtually the entire American telecom industry—AT&T, Sprint, Verizon, BellSouth, and numerous others—broke the law by allowing the U.S. government to invade their customers’ private communications without the warrants required by the federal statutes that the telecoms themselves had actively participated in writing. And it is not insignificant that their actions generated hundreds of millions of dollars in government surveillance contracts.
    When the NSA program was revealed, the telecoms’ customers, represented by nonprofit groups such as the Electronic Frontier Foundation and the American Civil Liberties Union, sued these firms for