Accepting this argument, as the Senate did yesterday, undermines the fundamental purpose of the warrant process, which is to ensure independent review of domestic spying activities. And the law was quite clear on this point. FISA makes it a criminal offense to “engage in electronic surveillance under color of law except as authorized by statute.” The law included a variety of exceptions, but until the passage of the Protect America Act last summer, none of them involved “assurances from the highest levels of government.” Firms like Verizon and AT&T have small armies of lawyers who know this area of law as well as anyone on the planet. They hardly needed the president’s help to interpret it. If the firms’ actions were in compliance with the law, they’ll have the opportunity to prove that in court. And that is where the fight should play out.
Press reports suggest that the Bush administration has created at least two warrantless surveillance programs with the cooperation of major telecom companies. The first, reported by the New York Times in 2005, involved the warrantless interception of several hundred Americans’ international phone calls and e‐mails. Under the second, first reported by USA Today in 2006, Verizon and AT&T (then called SBC) reportedly provided the government with access to the domestic calling records of its customers. Qwest CEO Joseph P. Nacchio declined to participate in the latter program, believing that doing so would be against the law. Nacchio now alleges that the NSA retaliated for his refusal by canceling an unrelated, lucrative government contract. (He faces unrelated charges of insider trading.) Last summer, the Heritage Foundation’s Matthew Spalding insisted that giving amnesty to illegal immigrants would be “deeply unfair to the millions who obey the law and abide by the rules.”
By the same token, letting AT&T and Verizon off the hook would not only be unfair to the customers whose privacy they violated, it would also be unfair to Qwest, which was put at a competitive disadvantage for obeying the law. Nor is retroactive immunity necessarily constitutional, at least as long as the telecoms don’t have to give some compensation to the people who filed the lawsuits that would be scratched by the Senate’s bill.
Republican senators have argued that Verizon and AT&T are unable to defend themselves adequately because the Bush administration is preventing them from disclosing classified documents that could exonerate them. But the courts have a long track record of reviewing sensitive information in private and dismissing cases that cannot be litigated fairly without exposing state secrets. Last year, the U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit against the Bush administration for warrantless surveillance because the plaintiffs’ case hinged on the contents of a classified document. The court held that the case could not be litigated without exposing state secrets and so it would not be litigated at all. The 9th Circuit has so far refused to dismiss on state secret grounds the pending class action lawsuit against AT&T for its participation in warrantless surveillance. But the court has signaled that it is open to reconsidering this decision as the case proceeds. If the House follows the Senate, the judges won’t have the opportunity. The telecoms won’t have to admit they broke the law or compensate their customers. What sort of incentive does that give them to refuse the next time the government asks them to break the law?
Now, the Senate bill will move to a conference committee to be reconciled with House legislation that does not include a free pass for the telecoms or authorize warrantless surveillance of Americans’ international communications. With the Democrats controlling both houses of Congress, one might expect the conference committee to side with the House. But the Democratic leadership’s heart doesn’t seem to be in the fight. Senate Majority Leader Harry Reid, D‐Nev., seemed ready to capitulate after yesterday’s vote when he said the bill had been “improved” by the Senate and that he “preferred to move on to other legislation.”
Particularly disappointing was Hillary Clinton’s decision to skip yesterday’s votes. On the campaign trail, Sen. Clinton has argued that her years of Washington experience give her a unique ability to fight back against Republican hardball tactics. Those skills were sorely needed in the Senate yesterday, but she didn’t fit the debate into her schedule. Some Democratic voters may wonder if this is the kind of leadership she would show as president. In contrast, Barack Obama voted with civil libertarian Russ Feingold, D‐Wis., on all six amendments and the cloture vote, only missing the vote on the final bill after the outcome had become clear. More Democrats should have followed Feingold. If Congress wants its laws to be followed in the future, it cannot give a free pass to companies that broke the law in the past. Republicans are clearly forgetting this. House Democrats should stand up to them.