FISA: Stick to Your Guns, Mr. President

By January 29, 2008Briefly Legal, Communications

We’d been waiting to see what Andrew McCarthy had to say about FISA reform (S. 2248); McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies and is a clear thinker on national security issues. We agree with him, usually, and on the question of telecom immunity, definitely.

From his column in today’s National Review:

The NSA program was a proper exercise of the president’s constitutional power. Even if one disagrees with that, however, any ire should be directed at the president, not telecoms which cooperated in good faith during a time of undeniable crisis. And if one is insistent that national-security surveillance needs court oversight, the solution is exactly what we’re talking about: to improve FISA by legislation so the need for future warrantless surveillance is unlikely. The answer is not to drag the telecoms through lawsuits (expenses for which are passed on to consumers) and disincentivize them from cooperating when we most need their expertise. Such suits, in any event, are just gambits by which privacy extremists and jihadi apologists seek to have courts impose what they can’t persuade the public’s elected representatives to enact.

The other colloquialism of the day: Don’t let opponents kick the can down the road, hoping to achieve their legislative goals — more multibillion-dollar lawsuits, less legal surveillance — through delay and obstructionism.

Blogging on the issue yesterday, columnist Michelle Malkin also cites the warnings against “kicking the can” with terrorist surveillance. And thank you for the citation (from the conference call with Sen. Bond).

Join the discussion 2 Comments

  • Michael Wilson says:

    Mr Wood,
    Despite considerable time and effort, I have never been able to nail down a compelling argument made in favor of telecom immunity.

    I believe those in favor of said immunity have been pigeonholed, better yet, have pigeonholed themselves. On the one hand, data about the wiretapping program could (and should) be made public, and, barring the existence of any “extra-legal” exchanges, the telecoms would certainly be exonerated. Unfortunately, said data likely documents a myriad government agencies trouncing already slackened wiretapping regulations. Those govt officials standing to lose in the matter are playing their final card–obfuscation and legal manipulation. Now the really unfortunate circumstance is the telecoms having to foot the bill for all this, when they likely thought (or were coerced into thinking) they were acting in accordance with the law. Someone has to pay for this, and if the telecoms end up without a chair when the music stops, at least future companies will consider the legal ramifications before questionably coughing up data on constitutionally protected citizens.

    And Carter, are you sure that quote wasn’t from Joseph McCarthy? I think it might’ve been, because if you result to calling people concerned with 4th amendment rights “jihadi apologists,” you might be a contemporary of Joseph McCarthy.

  • Hope Marston says:

    Dear Carter Wood,
    The telecommunications companies have lawyers that certainly knew that cooperation with the executive branch without a warrant was illegal.

    Machinery currently exists for companies to cooperate with the federal government in time of need — it’s called a warrant. When the government is acting legitimately, it is able to produce a warrant for actions it asks companies to take.

    When the federal government is not acting legitimately, then it needs under-the-table cooperation. Frankly, I prefer accountability from both the government and from U.S. companies — not for them to sneak around like criminals.

    And, when caught, doesn’t each alleged criminal deserve a fair trial? Don’t the American people deserve to hear whether our president and the telecommunications companies acted within the law or not? Why hold up the process of democracy?

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