Judas

There seems to be a widespread misapprehension about George W. Bush's comments on the necessity of "telecom immunity." People have fallen back on the old "nation of laws, not men" bromide to explain their outrage. They have it in their head that because the United States is a democracy, or whatever, "the law" exists somehow objectively, that it is neither ad hoc nor arbitrary. Of course that isn't the case. At every stage of enaction and enforcement, the law is discretionary. The police, the prosecuter, the DA, the judges, the budgetmasters in the legislatures, the attorneys general, the governors and presidents--all hold and exert the independent power to determine within a certain scope whether or not to enforce a law. The idea that uniformity and equality will flow from such an arbitrary network is one of the great errors of democratic political philosophy. The grade-school definition of the Executive Branch holds that it is the job of the executive to make sure that the law is enforced. It naturally follows that this power operates in the other direction as well. By omission or by commission, the President can also see that a law is not enforced. The controversy over "signing statements," like the liberal outrage over Gee-Dub's imperialism, is about style and not substance. He has simply taken to announcing what has always been the case--that the Emperor is the Emperor, and the Senate not fit to be slaves.

On the other hand, in civil law, actions can originate from outside of the apparati of government. The arbitrary nature of "justice" usually accrues benefit to preexisting power, but it is arbitrary, and the "some side effects may occur" of this particular drug is that from time to time someone might make the "wrong" decision. Some judge might actually award monetary damages, for instance. Even if that were not the case, the expense in time and money of mounting multiple defenses in multiple, many-yeared legal disputes might disincline "private companies" from doing what they are told to do. This is not a moral calculus; corporations are not moral agents. Qwest, much-lauded as the "good" telecom, was not a "good" actor, but a prudent one. It anticipated certain expenses and decided to avoid them outright. Granted preemptive immunity from civil penalty, it would act exactly as the other telecoms, who simple erred in overestimating their and the government's capacity for secrecy. The view of the government is that civil actions must be staunched in order that comapanies can follow the law. "'The law' is what we tell you to do!"