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

enabling the government to spy on their phone calls and e-mails without warrants. Suing the telecoms was particularly important because the Bush administration had succeeded in blocking the eavesdropping-related suits that had been brought directly against the government—even though all three federal judges who had considered the legal issues had concluded that the NSA program broke the law. (To get the lawsuits against the government dismissed, the Bush Justice Department argued that the eavesdropping program was a state secret and therefore could not be evaluated by the courts; it also maintained that since no specific individual could prove that he or she had been spied upon by the secret program, no one had legal standing to sue the administration.) Suing the telecoms was thus the only way for American citizens to learn the central facts about what the spying program entailed: Which citizens were targeted? How many? How were they selected? With lawsuits against the government blocked, the telecom suits were also the only means for obtaining an official court ruling on whether Bush’s warrantless spying program was illegal.
    From the start, the telecom cases were a classic David-versus-Goliath battle. The plaintiffs were ordinary, powerless Americans: customers of the telecoms whose e-mail records and telephone conversations had been turned over to the Bush administration without warrants. Their lawyers came from the EFF, a small nonprofit organization with a tiny budget. By stark contrast, the defendants were all telecom giants, represented by armies of the nation’s most expensive law firms. Nonetheless, as the lawsuits proceeded, courts began ruling against the telecoms.
    In one of the most important developments, in July 2006 the federal judge Vaughn Walker refused to dismiss the lawsuits brought against AT&T by its customers. AT&T had cited FISA’s immunity provisions as a ground for dismissal, but Judge Walker rejected that argument, ruling that the conduct in which the telecoms were accused of engaging was so clearly illegal that they could not hide behind the immunity provisions provided by law. Judge Walker wrote that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
    But in the United States, the most powerful corporations need not fear when they break the law or even when courts begin to rule against them. They can simply have the law changed—even retroactively—by the Congress which they own. Once they began losing in court, that is exactly what the telecom industry proceeded to do: it flooded the coffers of key members of Congress with money, deployed a veritable army of the highest-paid and most politically well-connected lobbyists from both parties, and began demanding that Congress block courts from ruling on their conduct and retroactively immunize them from any consequences for their lawbreaking.
    Elites Conspire to Protect their Own
     
    It is difficult to overstate the extent to which congressionally bestowed retroactive immunity represents a profound departure from basic norms of justice. Ordinary Americans are sued every day and forced to endure the severe hardships and sometimes ruinous costs of litigation. When that happens, it is the role of the courts alone to determine who is at fault and whether liability should be imposed. The Constitution vests “the judicial Power of the United States” in courts, not Congress. And when it comes to lawsuits brought against ordinary Americans, that is how such suits are always resolved: by courts issuing rulings on the merits. The very idea that Congress would intervene in such proceedings and act to protect ordinary Americans from lawsuits is too outlandish even to entertain.
    But when the wealthiest, most powerful, and most well-connected financial elites are caught red-handed violating the privacy rights of their customers and committing clear felonies,