Holding Telecoms Hostage: A Dangerous Game

By January 24, 2008Briefly Legal, Communications

Stuart Taylor, as usual, has an insightful column in today’s National Journal on the debate over S. 2248, the Foreign Intelligence Surveillance Act update.

And, in fact, hardly anyone in Congress thinks that the telecoms should (or will) be forced to pay huge damages to the plaintiffs, who after all have suffered no real harm. So why are some senators, including Patrick Leahy, the Senate Judiciary Committee’s senior Democrat, fighting the immunity proposal?

The real reasons are election-year pressure from liberal groups and the hope that the lawsuits will force public disclosure of information embarrassing to the Bush Administration. Leahy said in a press release that he opposed giving retroactive immunity to the telecoms because that would reduce their incentives to protect privacy and “would eliminate the courts as a check on the illegality of the warrantless wiretapping of Americans that the administration secretly engaged in for almost six years.”

That’s the political analysis. Taylor also does a thorough and persuasive case of explaining the practical and policy arguments for granting retroactive immunity.

(Hat tip: The Heritage Foundation’s Foundry Blog.)

Join the discussion One Comment

  • Paul Dirks says:

    and the hope that the lawsuits will force public disclosure of information embarrassing to the Bush Administration

    Here of course is where the argument “If you have nothing to hide then what’s the problem?” which is usually deployed in defense of eavesdropping suddenly comes into play from the administration’s angle.

    If the lawsuits were without merit then immunity would be unnecessary. If the lawsuits have merit then preventing them from proceeding is by definition, an injustice. And if the administration had done nothing untoward, then there wouldn’t be any potential embarassment.

    It’s pretty simple if you think about it.

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