TELECOM IMMUNITY….I mentioned yesterday that although I oppose telecom immunity in the FISA bill currently being considered by Congress, I’m not “hellbent” on it. Several readers were unhappy about that and wanted to know exactly what I meant. So here it is.

First, let’s set the stage right after 9/11. Al-Qaeda had hijacked four airplanes and driven them into three buildings, killing over 3,000 people. We didn’t know if more attacks were imminent. A week later people started dying from letters contaminated with anthrax and we had no idea who was behind them or if more was to come. There were seemingly credible reports at the time that Osama bin Laden might be close to acquiring a nuclear bomb. Our intelligence services were essentially running both deaf and blind.

As I’ve mentioned before, in a genuine national emergency like this I don’t have a problem with the president assuming extraordinary powers for a short period. If, right after 9/11, George Bush asked telecom companies to open up their data streams to the NSA for a few weeks or months on an emergency basis until legislation could be passed formalizing new rules for data collection, I’d expect them to go ahead and comply.

I realize, of course, that not everyone agrees with this position. Some people have a more absolutist view of the law and believe there’s no excuse for breaking or stretching it regardless of circumstances. But I’m not one of them: as long as it’s limited to a short while after 9/11, I’m OK with an expanded surveillance program.

The problem, of course, is that it didn’t go on for only a short while. After things had quieted down, Bush’s Department of Justice produced memos justifying the continuing legality of the program even without enabling legislation. Congress was, as near as I can tell, informed about what was going on and offered no resistance. (A few Democrats have since weaseled a bit about whether they were really, truly informed, but frankly, I don’t believe them. I think they knew what was going on and were too scared to register any complaints.)

And so the program continued. And the telecom companies were stuck. They couldn’t go public, obviously. And there was never any appropriate time to suddenly pipe up and stop cooperating. The administration argued that the program was perfectly legal even under current law, and all along there appeared to be bipartisan support for that position in Congress. So everything just drifted along until James Risen blew the whistle in the New York Times.

And now who’s being asked to take the fall? The president? The Department of Justice? Congress? Of course not. It’s the telecom companies who are being sued.

Now, it’s inevitable that some people are going to read this and think that I’m concocting some kind of defense for telecom immunity. I’m not. I oppose it. In the end, the telecoms are big boys with big legal staffs, and they knew exactly what they were doing — and providing them with retroactive immunity at this point sets a terrible precedent and creates all sorts of perverse incentives to break the law in the future. At this point, if they think they can make a case that they acted in good faith and shouldn’t be held accountable, they need to make it to a judge and jury. If they have a good case, they’ll win. If they don’t, they’ll lose.

Still and all, the reason I’m not hellbent on this view is because it doesn’t seem right that the least culpable party is the one getting taken to court, while the most culpable parties — the president, the DOJ, and both Democrats and Republicans in Congress — get off scot free. Sure, that’s life. It’s unfair sometimes. I get it. But I don’t have to like it.

UPDATE: Just for the record, the Senate version of telecom immunity in S.2248 applies only to activities taken after 9/11. There have been reports of possibly illegal NSA/telecom activities being initiated several months before 9/11, but S.2248 wouldn’t apply to them. Here’s the relevant text:

[A] covered civil action…shall be promptly dismissed, if the Attorney General certifies to the court that (A) the assistance alleged to have been provided by the electronic communication service provider was (i) in connection with an intelligence activity involving communications that was (I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States….

If I’m misreading this, or reading the wrong version of the bill, please let me know in comments.

UPDATE 2: Josh Patashnik notes that it was entirely possible to target the more culpable parties if we’d wanted to: “There was an ideal solution to this problem: the Specter–Whitehouse substitution amendment, which would have allowed lawsuits to go forward but would have substituted the United States as a defendant, letting the telecoms off the hook.” Needless to say, the White House opposed this.

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