Should telecom companies like AT&T be given a ?get out of jail free? card for their participation in the Bush administration?s warrantless wiretapping program? That?s what Director of National Intelligence Mike McConnell and Department of Justice Assistant Attorney General Ken Wainstein asked for on Tuesday in a House committee. Strangely enough, it appears that Congressional Democrats are seriously considering playing along. As the New York Times reported in an article on the House committee hearings, ?Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies.?
Any deal of this sort is a direct attempt to affect EFF?s case against AT&T ? in which we allege that the telecom giant participated in an illegal wiretapping program ? as well as other pending lawsuits challenging illegal surveillance. But EFF isn?t the only group outraged by the willingness of Congressional Democrats to buckle at a moment?s notice?
The Bush Administration and [Mike] McConnell are demanding retroactive immunity for past violations by telecommunication companies of the law by engaging in warrantless spying of American citizens. In essence, it would codify the notion that these companies can break the law merely because the president tells them to.
Well, Democrats appear ready to agree.
Wainstein and McConnell are holding firm that no civil liberties are adversely impacted by the Protect America Act. In that context, Rep. Tom Feeney (R-FL) asked a good question: Why, then, seek to codify in the law a prohibition on suing telecommunications companies from complying with government surveillance?
Wainstein's answer? It's "just not right" not to provide that immunity for a company cooperating with the FBI or NSA on surveillance.
Granting retroactive immunity to telecom companies for past lawbreaking is so plainly unjustifiable, even dangerous, that it ought to require no real debate. That Congressional Democrats are even considering submitting to this demand, let alone that they are likely to do so, dispels any doubt about what they really are.
The pending lawsuits against AT&T and other telecommunications companies for having violated the law by enabling warrantless eavesdropping on Americans' telephone conversations is one of the very few remaining avenues (though not yet the only one) for obtaining a court ruling as to whether the NSA spying program ? which the President ordered for five years at least ? was illegal. If Democrats do what the Times article suggests they are prepared to do, i.e. grant retroactive immunity to telecoms, that would compel dismissal of those lawsuits, which in turn would destroy what is perhaps the last chance for ever obtaining a judicial determination as to whether the President broke the law. What possible rationale would lead them even to consider such a thing?
It?s great to see outrage filtering through the blogosphere over this latest attack on the rule of law. Anyone who believes in a system of checks and balances ought to be horrified by the fact of Executive overreach, the capitulation of the Congressional branch, and attempts to limit judicial oversight. Call the Democratic leadership now, and tell them to refuse to let the phone companies off the hook.