Donkey Punch

July 3, 2008

The Nuremberg Defense

Go ahead, call it out. I’ve Godwinned my post before even getting past the title.

The Nuremberg Defense is a legal defense that essentially states that the defendant was “only following orders” (“Befehl ist Befehl”, literally “order is order”) and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Our Senate is going to come back next week and vote on the new FISA bill. For those of you that don’t know what that is, here’s a brief overview via Bill Moyers:

On January 27, 1975, the Senate, in the wake of the Watergate scandal and alarmed by recent allegations of intelligence service misdeeds, voted to establish an 11-member investigating body along the lines of the recently concluded Watergate Committee….

In reaction to the Church Committee reports pushing for oversight, Congress passed the Foreign Intelligence Surveillance Act (FISA) of 1978, which established a secret FISA court responsible for issuing warrants for domestic wiretapping activity. The FISA court consists of seven judges appointed by the Chief Justice and who serve for seven years.

In December 2005, the NEW YORK TIMES reported that President Bush had authorized the NSA to eavesdrop on American phone calls and emails without obtaining a warrant from the FISA court. That revelation was met with consternation, and investigations, by many in and outside of the political realm.

In August 2007, a temporary amendment to FISA passed called the Protect America Act, which as President Bush explains, modernizes FISA by “accounting for changes in technology and restoring the statute to its original focus on appropriate protections for the rights of persons in the United States – and not foreign targets located in foreign lands.”

Bascially, the FISA bill passed in 1978 provide a framework in which we can spy on people, but supposedly prevents the President from abusing his power and spying without review from a court (exactly what Bush has been doing). The consequence for violating FISA is (again, supposedly) a felony punishable by up to five years in prison.

Right now there are more about 40 civil lawsuits against the telecoms for breaking the law and allowing the government access to huge amounts of our communications. Their defense? We we only doing what we were told. Sound familiar? Remember that the telecoms have large legal departments, and don’t do anything unless it is reviewed by these lawyers in order to expose themselves to minimum liability. There is no way they thought this was legal (unless their legal departments consisted of Liberty University hacks).

When the Senate gets back in session on Monday, they are planning passing an update to the FISA bill that the House passed last week. It is a complete sham. They want to retroactively immunize the telecoms for breaking the law because…wait for it…the telecoms were only doing what they were told.

Did you know that the government started the wiretapping program 7 months before 9/11? We know this because a former CEO of Qwest, Joe Nacchio, was tried and convicted of dumping stocks. During the trial it came out that on February 27, 2001Nacchio had a meeting with a representative from the NSA to discuss the Groundbreaker program, essentially the farming out of the NSA’s Information Technology to the telecoms. It was estimated that the program was worth 2-5 billion dollars in new revenue for the telecoms. (Many critics have said that the Groundbreaker program was actually just a cover for massive illegal wiretapping.) Here’s Naccio’s lawyer, Herbert Stern:

In the Fall of 2001, at a time when there was no investigation of Qwest or Mr. Nacchio by the Department of Justice or the Securities and Exchange Commission, and while Mr. Nacchio was Chairman and CEO of Qwest and was serving pursuant to the President’s appointment as the Chairman of the National Security Telecommunications Advisory Committee, Qwest was approached to permit the Government access to the private telephone records of Qwest customers.

Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request. When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act.

So Joe Nacchio says no (Qwest is the only company known to have raised objections) and six years later he is rotting in jail.

So our congress is attempting to codify the Nuremberg Defense. And although months ago this issue came up Barack Obama pledged to do anything to stop retroactive immunity, now that he has the nomination he has decided it is good for the country and he supports it.

What really concerns me is that when discussing this issue with friends, I have heard the “They were just doing what they were told” bullshit. Check out this comment from an excellent post about Obama’s position on this matter from the American Conservative:

I work in private industry, in construction, and if the government came to me and insisted that I build something that was vital for national security but violated a few laws, and was assured that this wouldn’t be a problem, and that if I did this I would be rewarded, and if I didn’t that I wouldn’t get many government contracts again, what exactly should I be expected to do?

That is some scary stuff. But he keeps digging:

If we make our entire system of laws dependent not on the government following the law, but on private individuals bucking the government’s inducements and extortions, we have a crazy system of checks and balances in place.

Yeah, there something crazy going on here all right. But it doesn’t have to do with checks and balances, it has to do with assuming that the government always has our best interests at heart.

I’ve got news for you. They don’t.