Cross posted from Tom Paine
The battle lines are drawn. Congress has again taken up the issue of electronic surveillance, trying to rein in the excesses of the “Protect America” Act. A central point of contention: deciding whether telecommunications companies will be granted immunity for their complicity in the government’s warrantless wiretapping scheme.
The telecom giants and the Bush administration are pushing hard for immunity. The question remains whether Congress will be able to hold the line against White House demands that the telecom companies are absolved of responsibility for their potential past violations of Americans’ rights.
The President and his Director of National Intelligence Michael McConnell would rule out of bounds any civil and criminal penalties for any and all violations of the telecoms’ statutory, regulatory, or constitutional duties, leaving those whose civil liberties have been infringed without a remedy.
The immunity provision was one of the few items on the administration’s surveillance wish list that did not become law as part of August’s hastily-enacted PAA. Now that Congress is trying to mitigate the damage wrought by the PAA, the White House is once again resisting efforts to hold accountable those who have violated the law and Americans’ constitutional rights.
But the administration simply hasn’t explained why such a provision is necessary or wise. Some say the telecoms deserve praise for aiding counterterrorism. But the Foreign Intelligence Surveillance Act already bars penalties for private parties who get a certification from the government that their actions are lawful. If the telecoms intercepted, stored and turned over to the government Americans’ communications and communications records without this assurance-which was designed with this precise situation in mind-are they really the well-meaning patriots that immunity supporters make them out to be?
Dire warnings that litigation against the telecoms will disclose classified state secrets or bankrupt the companies themselves are even less persuasive. Courts handle classified information on a regular basis, so there is no real danger of untoward revelations (except those that embarrass the government). And telecoms are no stranger to multi-million dollar payouts. Just last month, one major telecommunications company settled a suit for $30 million. Talk of telecom bankruptcy is speculative-and undermined by the fact that the stock market hasn’t flinched in response to the pending lawsuits. If the Administration’s true concern was for the telecoms’ financial well-being, the government could simply impose a limit on damages that could be collected from those companies, as it did for air carriers, airline manufacturers and airport owners after 9/11.
In addition to being unnecessary, immunity is also ill-advised and should make us all uneasy. Congress still has not been fully informed regarding the administration’s warrantless surveillance program. Why should Congress grant immunity before they even discover what they are immunizing? Moreover, eliminating adverse consequences for conducting surveillance outside the legal framework established by the Foreign Intelligence Surveillance Act signals to private companies that if they engage in unlawful conduct at the behest of the government their illegal conduct will be excused. If this is the case, the telecoms have no reason to comply with the law going forward. This is not the message Congress should be sending.
Democrats on the House Intelligence and Judiciary committees should be applauded for refusing to bow to White House demands and telecoms lobbying so far. In the face of mounting pressure from the White House, they rebuffed Republican efforts to provide retroactive amnesty for telecommunications companies’ role in the Administration’s warrantless wiretapping program.
To hold the line on the immunity issue, House Democrats need the courage of their convictions. The President is apparently warming up his veto stamp over the issue, including liability protection for the telecoms as one of the necessary criteria for any bill that he signs.
Now is the time for Congress to stand up to the White House’s threats and bullying, insist that our national security does not, in fact, depend upon stripping Americans of their privacy rights, and to ensure that the telecommunications companies are held accountable for whatever unlawful actions they may have taken.