FISA Follies

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Thursday, July 3, 2008

THE CONTENTIOUS issue of whether telecommunications companies that participated in the Bush administration's warrantless wiretapping program should be granted retroactive immunity from being sued is a particularly disturbing example of the Internet tail wagging the legislative dog. The dispute snarled Senate passage of the latest rewrite of the Foreign Intelligence Surveillance Act before lawmakers left town for the July 4 recess. In the interim, Sen. Barack Obama (D-Ill.), who indicated that he would support the compromise even with an immunity provision, is simultaneously being attacked as a flip-flopper -- he had previously vowed to filibuster any bill that shielded the companies -- and urged to flip again. An Internet petition drive is underway to pressure Mr. Obama to knuckle under. Mr. Obama should hold firm, along with other colleagues who support the underlying, painstakingly achieved bipartisan compromise.

Reasonable people can differ on the issue of immunity, but the FISA debate hasn't been overpopulated by reasonable people. As a result, the immunity issue has assumed a significance in the legislative process that far exceeds its underlying importance. We understand the heartfelt arguments of those who believe that closing the courthouse door to Americans who claim the warrantless wiretapping invaded their privacy rights represents "an abandonment of the rule of law," as Sen. Christopher J. Dodd (D-Conn.) said last month.

But the fact remains that no one can claim with certainty that his or her communications were monitored. The likelihood of prevailing -- or even getting very far -- with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries. The telecommunications companies complied with a government request after being assured, in writing, that the activities had been authorized by the president and deemed lawful by the attorney general. Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

More fundamentally, even if we are wrong and retroactive immunity is not warranted, that is the least -- not the most -- important aspect of the complex FISA debate. The more important concern is to ensure that there are adequate protections in place, including vigilant court oversight, to give intelligence agencies the flexibility they need to intercept international communications without infringing on the privacy rights of Americans.

On that score, Mr. Obama nailed it the other day when he explained his new position -- "that the issue of the phone companies per se is not one that overrides the security interests of the American people." Mr. Obama said he would be "happy with a system" that "makes sure that we prevent violations of the American people's privacy even if the phone companies are held harmless. The issue was, 'Can we get to the bottom of what's been taking place?' and, most importantly, 'Do we have safeguards in place going into the future so that American's civil liberties are not being violated?' " Those are the right questions, and Mr. Obama gave the right answer.


© 2008 The Washington Post Company

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