The Senate takes up wiretapping of foreign terrorists this week, and the stakes couldn’t be higher. Not only for the ability of our spooks to eavesdrop on al Qaeda, but also regarding Congressional and judicial intrusion into Presidential war powers. Some damage seems certain, but the issue is how much damage President Bush will accept.
The debate concerns an effort to revise the 1978 Foreign Intelligence Surveillance Act (FISA) to bless spying without a court order on terrorist communications that originate overseas but move through U.S. switching networks. We believe — and appellate courts have stated — that the President already has such authority under the Constitution. But the political left claims this is “illegal” under FISA, and Mr. Bush has agreed to work with Congress on a compromise.
By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.
This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor.
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