What you do, and what the telcos should have done, was follow the law, and tell the President he doesn’t have the power to rewrite it, and face the penalties the law specifies for failing to tell the President this if you don’t. Tell him that he should ask congress to rewrite it if need be.

But the law does allow wiretaps without warrants for a limited time to deal with emergencies. It does provide immunity for the phone companies if they follow the procedures.

So you don’t quite have to do (A). You can (you employ more lawyers than most government departments) inform the government of the proper compliance procedures for doing a tap without a warrant.

As for B, the point of the law is the government is supposed to convince a judge (even after the fact in the emergency case,) not you. It’s not your call. It’s a judge’s call. Do you not think judges are able to do this sort of analysis? That they don’t understand emergencies and national security? We’re talking about actions here where the judges, steeped in the law and authorized under the law, have said no, or are so likely to say no that the President is afraid to ask them — even after the fact. How is it your place, as a phone company, to say yes, when the judge would say no?

For classified work, you can’t do C, but you may be able to reveal general terms. And yes, if the government is violating the law, we depend on whistleblowers to let the public, congress and the courts know about it.

I can see how some might feel that “D” is the choice — but for 5 years? Even if you picked D on Sept 12, 2001, you should have immediately put on the pressure to deal with the legality of this. The courts should learn what’s going on, to decide if you did the right thing. You might even ask the government to indemnify you for violating the law for a few weeks until congress and the courts can be brought in on it, to take out of your hands this decision which should never have been put in your hands. As far as I know this didn’t happen though of course I am no privy to private or classified discussions.

The point is not how to deal with emergencies and terrorists. The point is the rule of law, especially the rule of law around protecting civil rights. A system was created by congress for just such a problem, with a set of rules, and a panel of judges. All with people who are sworn to uphold the constitution and law. As a phone company, you’re not so sworn. You are supposed to punt the problem to the courts or congress. Their job is to act as checks and balances on abuse of power by the other branches. Congress laid out exactly what a phone company is to do if it gets an illegal order from the NSA. If that was wrong, then within a few days, congress should have been asked to address it.

Now frankly, I don’t think it was wrong the way you do. There is a long history against “dragnet” surveillance in our jurisprudence, and for good reason. And for reasons that actually keep getting better, too. The law is clear. Companies are not supposed to hand over all the data so that the feds can sort through it to find what they want, promising not to look at the private communications of innocents. Instead, the companies are supposed to do the sorting, and hand over the records of the people the government has convinced a judge need surveillance.

Of course, giving the government more power here would let it do more. But that’s not the question in a free society. In a free society you deliberately cripple the power of the government to do this sort of stuff, knowing it will make it harder for them to do their jobs, knowing it will mean some criminals escape or go undetected. That’s not a bug, that’s part of the design. We can debate how much to cripple, and what the risks to freedom are for not crippling, as well as the risks to security of crippling. But that’s for congress and the public to do. It is not something that can be done in secret in a free nation.

When the founders of the USA said “liberty or death” they meant it. There were liberties they would not give up, yes, even if it meant more innocent people would die.