Telecom Immunity on the Cusp

This week we’ll see how many Senators walk their talk and stand with Sen. Chris Dodd against telecom immunity in the FISA bill. The Judiciary Committee reported a bill without immunity; the Intelleigence Committee reported a bill that contained immunity. Majority Leader Reid is bringing the Intelligence Committee bill to the floor.

Why is it a big deal — even if you’re not suing the telecoms and in danger of watching your claim go down the tubes?

According to Eric Lichtblau, James Risen and Scott Shane in today’s New York Times, the problem is, long story short, that technology is more complicated than government is able to handle. To conduct surveillance, government has become dependent on the telecoms. However,

After the disclosure two years ago that the N.S.A. was eavesdropping on the international communications of terrorism suspects inside the United States without warrants, more than 40 lawsuits were filed against the government and phone carriers. As a result, skittish companies and their lawyers have been demanding stricter safeguards before they provide access to the government and, in some cases, are refusing outright to cooperate, officials said. 

“It’s a very frayed and strained relationship right now, and that’s not a good thing for the country in terms of keeping all of us safe,” said an industry official who believes that immunity is critical for the phone carriers. “This episode has caused companies to change their conduct in a variety of ways.”

It’s a brave new world out there, and it appears that the countervailing forces that are making the telecoms skittish are healthy. But the health of the republic is not altogether the order of the day.

With a vote in the Senate on the issue expected as early as Monday, the Bush administration has intensified its efforts to win retroactive immunity for companies cooperating with counterterrorism operations.

“The intelligence community cannot go it alone,” Mike McConnell, the director of national intelligence, wrote in a New York Times Op-Ed article Monday urging Congress to pass the immunity provision. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.”

Attorney General Michael B. Mukasey echoed that theme in an op-ed article of his own in The Los Angeles Times on Wednesday, saying private companies would be reluctant to provide their “full-hearted help” if they were not given legal protections.

Lest we  let ourselves be lulled into thinking this is a 9/11 thing,

In December 2000, [NSA] officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.

The idea was Big Brother (and his faithful telecom sidekicks) watching you from the get go. As we may well suspect from Sen. Reid’s behavior, this is not a partisan aspiration; it’s an aspiration of raw power.

Now the struggles of power checked and balanced may approximate justice. Unchecked power gets lazy, taking the straightest, broadest path to its ends — running over anyhone who happens to be in its way.

That is a big deal.

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