Why Immunity Matters

Even if the orders were illegal and the telecoms broke the law, however, is this really their battle? At Tuesday's briefing, an anonymous senior Justice Department official argued that they shouldn't be caught in the middle of a separation-of-powers argument: "[T]he issue, though, is whether in this heated disagreement between the President and some members of Congress about the scope of people's powers under the Constitution -- the scope of the President's national security powers, the ability of Congress to pass certain statutes -- whether private parties are going to be the way to play that out, and essentially, while our intelligence capabilities continue to degrade, is that how we're going to settle those issues, many of which have gone on for over 200 years?"

Indeed: Why hasn't this issue been explored elsewhere -- say in congressional hearings, or criminal cases? The short answer: A lot of the same Democrats who would have called these hearings timorously acquiesced to the program when they were informed about it in secret briefings years ago. So they've been co-opted. And Bush's own Department of Justice isn't going to sue itself.

As a result, the telecom lawsuits are the only remaining avenue the public has -- at least until the next administration to find out what was done in their name. And immunity would be the final touch to the administration's stone wall.

On Secrecy

Terrorists everywhere had plenty of reason to believe that the United States was trying to spy on their electronic communications long before the New York Times broke the story of Bush's warrantless wiretapping program in December 2005.

What was new about the program was not some sort of tactical or technological breakthrough that the terrorists could overcome once alerted to its existence. What was new about the program was that it was arguably in violation of the Foreign Intelligence Surveillance Act, which forbids any form of domestic wiretapping without a warrant.

Whether the government was listening in on their calls legally or not was not material to the terrorists -- but it's hugely relevant to any American who cares about the rule of law.

So what is Bush so worried about? Yes, information about how, when and against whom the wiretaps were carried out could potentially help terrorists to more effectively cover their tracks -- but the courts have a proven record of being able to keep such information secret, even while allowing a trial on the overarching issues to proceed.

As Dan Eggen and Ellen Nakashima write in Sunday's Washington Post: "If the cases are allowed to proceed, plaintiffs' attorneys say, the courts could review, in secret if necessary, any government authorizations for the surveillance. The process also might force the disclosure of government memos, contracts and other documents to a judge, outlining the legal reasoning behind the warrantless wiretapping program.

"Perhaps most important, disclosures in the lawsuits could clarify the scope of the government's surveillance and establish whether, as the plaintiffs allege, it involved the massive interception of purely domestic communications with the help of the nation's largest providers. . . .

"'I think the administration would be very loath for folks to realize that ordinary people were being surveilled,' said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which brought the lead lawsuit, against AT&T."

Given Bush's track record at trying to keep information that would embarrass him from the public, it's reasonable to suspect that the administration's main goal here is not to keep the program secret from terrorists -- but to keep it secret from us.

On Future Cooperation

Bush has been particularly insistent that failure to grant retroactive immunity would have grave consequences going forward. Here's what he told reporters on his way back from Africa on Feb. 21: "If we do not give liability protection to those who are helping us, they won't help us. And if they don't help us, there will be no program. And if there's no program, America is more vulnerable."