From the beginning of the debate over government wiretapping, the Bush administration has been adamant on two points. First, its warrantless surveillance of phone calls, e-mails and other digital data was legal. Second, the telecommunications companies that helped Washington's spying required immunity from lawsuits for their roles.
It doesn't take a conspiracy theorist to see the inconsistency in these points. If the program was legal, immunity is unnecessary.
Never mind the obfuscation and excuses coming from the telecoms and Director of National Intelligence Michael McConnell. Immunity for the corporations, to which the Senate Intelligence Committee has agreed, is a get-out-of-jail card for participating in illegal eavesdropping.
Neither the telecoms nor the administration can escape the fact that for years federal law already has immunized communications companies for fulfilling lawful surveillance requests. And these "safe harbor" provisions don't require long delays or complicated reviews by corporate lawyers. In some cases, all that is needed is a one-page certification from the attorney general saying the request is valid.
Clearly, the telecoms are desperate for additional immunity because they didn't have the spine to insist that the government meet even such minimal requirements. Verizon and other firms know they should have done what Qwest Communications did: say "no." Since they didn't, they need a special act of Congress relieving them of their considerable civil and criminal liability.
Despite the Intelligence Committee's immunity cave-in, the rest of Congress, particularly the House and the Senate Judiciary Committee, should block this shameless bailout. A grant of immunity would represent a tacit agreement that the law is whatever the president wants it to be. A Congress that agrees to that might as well just go home.
The telecoms and the administration insist the companies can't prove their innocence in court because to do so would require airing national secrets. The federal courts have long had procedures to handle sensitive national security cases. Evidence can be presented to judges with security clearances in their chambers without public participation.
The immunity bill would let the telecommunications companies off the hook, but not administration officials. This is misguided. All those who deliberately broke the surveillance laws should be held to account. If not, we are simply inviting more privacy abuses in the future.