Matt links to a Post op-ed that rightly criticizes the Bush administration for insisting on completely unfettered wiretapping powers, but otherwise misses the boat on the details of the dispute between the White House and the Democratic leadership. The argument has two major problems. First, we’ve got this:
The administration says that FISA wasn’t intended to cover the collection of intelligence information overseas. That is correct, but many of the communications are being intercepted in the United States and, more important, may involve U.S. citizens. In that situation, and with telephone and e-mail communications between the U.S. and foreign countries far more common than when FISA was enacted in 1978, it is reasonable to bring the court into the picture. The measure strikes an appropriate balance between the demands of some civil liberties groups for individualized warrants and the administration’s desire for sweeping authority.
The phrase “bring the courts into the picture” makes it sound like court oversight for domestic-to-foreign communication is a new idea. But in fact it’s not—it’s the way FISA has worked since it was enacted. If you wanted to install a wiretap on American soil, you had to get a FISA warrant, regardless of whether the other end of the line was overseas or not. The question isn’t whether we should “bring the courts into the picture.” The question is whether we should cut the courts out of the oversight role they’ve played successfully for the last 30 years.
The business of “striking a balance” is particularly galling because balance-striking is something you do when there are two different sides, each making reasonable and sincere arguments. But in this case, the Bush administration’s position is that they should be free to unilaterally declare anyone they want to be a terrorism suspect, and then wiretap those people with impunity. That’s not a reasonable position, and you can’t come to a reasonable position by “balancing” a reasonable position with an unreasonable one.
Second, as Matt points out, there’s this immunity passage:
There is one major area of disagreement between the administration and House Democrats where we think the administration has the better of the argument: the question of whether telecommunications companies that provided information to the government without court orders should be given retroactive immunity from being sued. House Democrats are understandably reluctant to grant that wholesale protection without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.
This is, as Matt points out, complete nonsense. I’ve been following the debate pretty closely and I’ve seen no evidence that they were operating in “a difficult and uncharted environment.” The law is very clear: it’s illegal for a telecom company to comply with a government wiretap request without a court order. That’s been the law for decades, and AT&T and Verizon have no shortage of competent legal counsel. Indeed, Qwest’s lawyers had no trouble determining that warrantless wiretapping was illegal when the government approached them with a similar request.
If Congress grants telecom companies retroactive immunity for unambiguously illegal actions, it will all but guarantee that in the future, telecom companies will comply with government information requests regardless of what the law says. After all, the government has the ability to reward or punish companies for their cooperation (or lack thereof) in illegal snooping programs. If Congress gives them a “get out of jail free” card this time, they’ll be even less likely to obey the rules the next time the executive branch comes along and asks them to break the law.
There’s nothing patriotic about trashing the constitution in order to score lucrative government contracts.
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