[Tim Lee]
John McCain earned the title "Captain Amnesty" for his work on immigration reform, but on Friday his campaign confirmed that he's pro-amnesty all around. A statement from the campaign said that (contrary to the remarks of one surrogate) McCain thinks that telecom companies who broke the nation's wiretapping laws should get a free pass. A statement from the McCain campaign says the Senator supports telco amnesty, but thinks it should be granted "with explicit statements that this is not a blessing for future activities."
As I pointed out back in February, this position doesn't make any sense. Our nation's surveillance laws provide for civil and criminal penalties for companies that participate in warrantless wiretapping programs. The purpose of those penalties is to give companies an incentive to follow the law. But if we give a free pass to companies that broke the law this time, will we be surprised when they're even more inclined to break the law the next time around? If McCain were really serious about the "don't do it again" caveat, I would expect that at a minimum, he would favor investigations and some kind of token penalty to at least acknowledge the principle that lawbreaking has consequences.
It's important to remember that we're not talking about a one-time lapse at a time of national emergency. It's not the case, for example, that these companies only participated in warrantless wiretapping in the days or weeks after the September 11 attacks. At least one telecom exec claims that the NSA began approaching telecom companies as early as February 2001, and these programs continued for years after the September 11 attacks without Congressional authorization or court oversight. Granting retroactive immunity under those circumstances would be a tacit admission that the law is toothless, and a green light to future telecom company executives that when the president asks them to break the law, they can do so without worrying about the consequences.
Mr. Lee, why not go get the Supremes to rule that the Administration actually broke the law and then get back to us about punishing companies? ISTR lots of wrangling about wiretapping in the past with very little that I would call a convincing argument on either side. I'm not a constitutional law scholar, but I do know that the Supremes are the real authority here, and the fact that no case has been brought (to my knowledge) beyond the Al-Haramain suit seems to me to indicate the "Administration committed a crime!" crowd realizes it is on weak footing. Until the Supremes say the law was broken, I'm willing to wait about convicting companies in the press for violating laws that may or may not be held constitutional.
John,
I agree with you. Pres. Bush and Sen. McCain don't. They want Congress to relieve the telcos of liability before the courts get a chance to deermine whether any laws were broken.
So where are the Dems in all this? Surely if they really believed with all their hearts that the President was wiretapping in defiance of the constitution, a case would be made to the Supremes[0] if for no other reason that to establish the boundaries on the office of the President and assert the powers of Congress. But Congress does nothing other than run to TV cameras and bloviate. If we can't depend upon the opposition to keep the Administration playing fairly, who can we depend upon? The alternative is that the anti-wiretappers don't really believe they have a strong case. I believe it is the latter.
If I were the Administration, or if I were in Congress, I would absolutely do something to show the telcos that they would be protected from political shenanigans by a blowhard, irresponsible Congress unwilling to put its money where its mouth is. IMHO, the law is less about liability than about assuring that good faith compliance with the US government isn't a license for cheap political shots and grandstanding from the Congress.
Congress either defends its turf and goes on the offensive to get an authoritative ruling about Presidential wiretapping powers, or else Congress should shut up. Lawsuits against good faith efforts to cooperate with the executive branch in a fuzzy area is a Really Bad Idea.
[0] Yes, I know this would run through the court system, but the issues are such that any final decision would need to come from the Supremes.