Retroactive Immunity

RETROACTIVE IMMUNITY….Given a choice of two FISA bills, one that provided retroactive immunity to telecoms companies that illegally cooperated with the NSA after 9/11 and one that didn’t, Harry Reid decided to bring to the floor the bill that provided immunity. Reid is rightly taking a lot of heat for this in the liberal blogosphere, plus additional heat for overriding Chris Dodd’s hold on the bill, but today the Reid-approved legislation passed its first test 76-10. This suggests pretty strongly that Matt Yglesias is right: The Senate as a whole clearly wants the immunity provision to pass, including a majority of Democrats, which means Reid should hardly be held up for any special opprobrium. He’s just doing the will of the people.

But why is nearly every senator so anxious to provide telecoms companies with immunity? After all, as Russ Feingold points out, under current law “companies already get immunity for cooperating with government requests for information — as long as the requests follow requirements that are clearly laid out in the law.” The answer, apparently, is that that’s not good enough. Attorney General Michael Mukasey wrote recently that “in the future we will need the full-hearted help of private companies in our intelligence activities,” and evidently we want that cooperation whether the government’s requests are legal or not. Thus the immunity. It’s a message for the future.

Other people have done a better job than me of explaining why this precedent is so odious, so I won’t rehash it here. Go read Glenn Greenwald instead.

But it’s still worth noting that it didn’t have to be this way. After all, hardly anyone, either liberal or conservative, would have objected if the Bush administration had gotten telecoms cooperation as a genuine emergency measure following 9/11. As Ron Suskind reminds us in The One Percent Doctrine, this was the situation at the time: Al-Qaeda terrorists had just attacked the country; further attacks seemed highly likely; our intelligence network was scrambling and nearly blind; we had good reason to believe that Osama bin Laden might be negotiating with Pakistani radicals to obtain a nuclear weapon; and credible reports suggested that al-Qaeda might also be on the road to manufacturing weaponized anthrax. Under the circumstances, asking telecoms companies to cooperate on an interim basis even in the absence of legal approval would hardly have been inappropriate.

But that’s not what happened. As Suskind also reminded us, instead of requesting temporary cooperation and then asking Congress for the implementing legislation within a few months, the Bush administration insisted on going it alone. Dick Cheney had long been obsessed with reasserting the power of the executive branch, and Bush himself was obviously smitten with the idea of being a “wartime president.” It was a toxic combination. As a result, instead of calming down after the initial panic and getting Congress fully involved, Bush and Cheney insisted on moving ahead for years in a legal gray zone.

So now we end up where we are today. Instead of an emergency request that was quickly put on a firm legislative foundation, we have a legal quagmire. And because Congress — Republicans and Democrats alike — went along with this even after we had gotten our bearings and had no excuse for continuing to operate on an emergency basis, they’re just as happy as anyone to put this whole episode behind them and cave in on the retroactive immunity issue.

And what happens the next time a president demands telecoms cooperation for years on end without legal justification? Well, that’s the problem, isn’t it?

UPDATE: Chris Dodd’s filibuster has forced Reid to withdraw the FISA bill until next year. But it’s only a temporary victory. In January the fight starts all over again.