Why Immunity Matters

By Dan Froomkin
Special to washingtonpost.com
Monday, March 3, 2008; 12:49 PM

When he's talking extemporaneously, President Bush's rhetoric on the issue of retroactive immunity for telecommunications companies that cooperated with his warrantless wiretapping program tends toward the simplistic and argumentative.

"We want to know who's calling who," he said at last week's press conference, emphasizing his words by thumping the lectern. "We need to know in order to protect the people."

No one, of course, is arguing the contrary. The debate is over how to go about it. And the major sticking point in the current congressional tussle over surveillance legislation is about immunity: Whether the telephone and Internet companies that for years let the government spy on their customers without a warrant should be protected from civil lawsuits alleging that they violated federal law in doing so.

And indeed, beyond the hyperbole, the Bush administration is articulating a more measured, three-part argument for immunity, based on concerns about fairness, secrecy and future cooperation.

It just so happens that all three parts of this argument are flawed.

The Three Reasons

Bush himself laid out the three reasons immunity is non-negotiable in some unusually specific remarks last Monday:

"One, it's not fair. Our government told them that their participation was necessary, and it was -- and still is -- and that what we had asked them to do was legal. And now they're getting sued for billions of dollars -- and it's not fair, and it will create doubt amongst private sector folks who we need to help protect us," he said.

"Secondly, such lawsuits would require disclosure of information, which will make it harder to protect the country. You can imagine when people start defending themselves, they're going to be asked all kinds of questions about tactics used. Makes absolutely no sense to give the enemy more knowledge about what the United States is doing to protect the American people.

"Finally, it'll make it harder to convince companies to participate in the future. I mean, if you've done something that you think is perfectly legal and all of a sudden you're facing billions of dollars of lawsuits, it's going to be hard to provide -- with credibility -- assurances that we can go forward."

Let's take them one at a time, in order.

On Fairness

Bush on Thursday argued that the telecommunications companies shouldn't be punished for patriotically carrying out legal orders. And he characterized the lawsuits as being the product of "class-action plaintiffs attorneys, [who] you know -- I don't want to try to get inside their head; I suspect they see, you know, a financial gravy train."

The Washington Post put Bush's claim in context on Friday: "Two nonprofit groups are overseeing [the five coordinated, class-action lawsuits pending against the phone companies]: the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union of Illinois." The Post also noted that "substantial damages would be awarded only if courts rule that they participated in illegal surveillance affecting millions of people, not just communications involving terrorism suspects overseas."

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