The Blog

(Updated) Acting in "Good Faith"

2:34 PM, Oct 18, 2007 • By MICHAEL GOLDFARB
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Glenn Greenwald is up in arms (what else is new?) over the fact that the Senate has moved to protect telecom companies from lawsuits related to their cooperation with the federal government in domestic surveillance. The Washington Post reports on the measure:

Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources. . . .

The draft Senate bill has the support of the intelligence committee's chairman, noted conservative wingnut John D. Rockefeller IV (D-W.Va.), as well as Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Greenwald's gripe is that "the question of whether the telecoms acted in 'good faith' in allowing warrantless government spying on their customers is already pending before a court of law." As to why the Senate is acting to protect the companies, Greenwald says that what we're seeing is that "the wealthiest and most powerful corporations in Washington can literally buy their way out of lawbreaking."

Two points. First, Greenwald's attack rests on his predictable presumption that the president, the telecoms, and now the Senate, have all acted in bad faith. Without exception, everyone who doesn't agree with Greenwald necessarily acts in bad faith. Except this isn't a matter of law--as a standard of behavior, good faith is subjective. The Congress makes the laws, the courts interpret them. In this case, a Democratic Senate and a Republican president have agreed that these companies acted in good faith and should therefore be granted immunity. What the court's have ruled, or would rule, is irrelevant.

And second, if federal agents show up at a corporate headquarters for a major American company and urgently seek that company's officers for assistance in the war on terror, the companies damn well ought to give it as a matter of simple patriotism, whether the CIA wants a plane for some extraordinary rendition or help in tracking terrorists via email. The companies affected by the new draft Senate bill acted in the interests of their country when they decided to comply with the government's requests. If the requests were inappropriate, that's another matter, but to expect a company to resist a plea from the government for help in a time of war is ridiculous. To subject them to the whimsy of our judicial system would be outrageous.

As an act of "good faith," the government has no choice but to deny a bunch of litigious lefties the chance to sue over a decision that any reasonable American would have made.

Update: So Senator Dodd has placed a hold on the bill, and Glenn Greenwald is actually asking readers, in Update XXVI, to "reward his superb actions with a contribution here [link to Chris Dodd for President]." This is the first time I've ever gotten to the end of a Gleen Greenwald post, so for all I know soliciting political contributions is routine at Salon, but doesn't "good faith" journalism, at a bare minimum, require the pretense of objectivity?