Should telecoms get a pass?

What happened

The Senate approved a government surveillance bill that codified the U.S. government’s broad right to intercept telephone calls and e-mails originating in the U.S. without first getting approval from Foreign Intelligence Surveillance Act (FISA) judges. The Senate’s version of the bill also gives retroactive immunity to telecommunications companies that cooperated with the Bush administration’s warrantless wiretap program after the Sept. 11 attacks, a key demand of the White House. The House’s version of the bill doesn’t include the immunity provision. The current stop-gap wiretapping law expires Friday. (The Washington Post, free registration)

What the commentators said

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We need phone companies to cooperate in “the fight against terrorists,” said The Wall Street Journal in an editorial, and denying them retroactive immunity would “certainly lead to less such cooperation in the future.” But that’s “precisely the goal” of the “anti-antiterror left.” They wanted to “ban such wiretaps directly,” but had to resort to this “backdoor” attempt instead. If Congress wants to “hamstring our intelligence war-fighters with legal rigidity and complexity,” they should at least do it themselves without “passing the buck” to unelected “FISA judges.” It was nice of Bush to “work with Congress on a compromise,” but he already has “Constitutional war powers to wiretap al Qaeda anyway.”

What a bunch of shameless “fear mongering,” said Glenn Greenwald in Salon. Phone companies already have “prospective immunity” for future legal cooperation, so what other incentive do they need? “The telecom amnesty debate is controversial but it is not complicated”—some telecoms agreed to government requests “to break numerous federal laws in exchange for profit,” and others didn’t. The only question is, “Which behavior do we want to encourage and reward”? Well, Congress is answering with “an extraordinary gift” to the “deliberate lawmakers” hiding under the “creepy Orwellian phrase ‘patriotic corporate citizens’.”

The Senate bill actually “seems like a good and productive compromise,” said Ed Morrissey in his Captain’s Quarters blog. Democrats have a “legitimate point” that “the NSA and other intel agencies” shouldn’t get a “blank check,” and need to “follow the rules" and "not abuse their power.” But come on, “telecom immunity should never have taken this long to approve.” They were assured that their “cooperation broke no laws,” and their “trust and assistances” shouldn’t be rewarded with “billion-dollar class-action lawsuits.”

Without those lawsuits, we’ll never find out the extent or boundaries of the “illegal” spying program, said Rex Nutting in MarketWatch. The “complacent Senate” sure isn’t going to ask. Worse yet, faced with a “huge lobbying effort by Big Telecom” and afraid of looking weak, the cowardly “Democratic-controlled Senate has rolled over on your right to privacy.” If the Senate bill is signed, your phone company can “help the government spy on you” by turning over your phone records and e-mails—“No warrant needed. No questions asked.” So if the argument is that “Al Qaeda is fighting us because they hate our freedoms,” you can “scratch the Fourth Amendment off the list of freedoms” for them to hate. Al Qaeda might hate your freedom, but “so too, apparently, does the U.S. government.”