A Question of Law

What am I missing?

President Bush, and the Republicans in Congress, continue to claim that it's essential to our national security to provide retroactive immunity to telecoms that assisted the government in possibly illegal wiretaps. Several dozen lawsuits are currently under way against companies that allegedly allowed government spies to illegally monitor domestic communications—despite the rather clear provisions of the FISA law in this matter.

Bush claims companies that fear legal liability will be less likely to "cooperate" with the government in the future, thereby compromising our ability to monitor terrorist communications. (It's important to note that Bush usually frames the public debate in terms of the need for cooperation going forward; his more private motivations may include the desire to cover up past transgressions.)

In other words, our ability to collect intelligence is in some fashion proportional to the chummy relationships we're able to maintain with our domestic telecom pals. We need to keep the intelligence skids continually greased by assuring them that they have nothing to fear when they cooperate with government requests, questions of legality notwithstanding.

As so often seems to happen with this administration, the rule of law is being thrown out with the bathwater.

That's because we're being told, in effect, that the law isn't the point when it comes to surveillance cooperation between government and industry. What especially matters is that we foster cozy relationships and a nurturing, comfortable environment.

That's wrong on both sides of the question, which should be neither more nor less than one of law.

In the matter at hand, the law needs to do two things. It must specify the legal threshold the government must meet when it wishes to compel companies to cooperate with it in spying (or, for that matter, anything else). We usually think of this as, for example, obtaining a warrant from a court that has appropriate jurisdiction.

Second, the law must specify what companies are required to do when the government makes a legally binding request. If the government has difficulty demonstrating that its request is legal, then it probably isn't. There is no room here for interpretation or ambiguity. Corporate goodwill has nothing to do with it. Nor does patriotism.

It matters not a whit whether companies want to cooperate with the government and, frankly, when it comes to spying on Americans, I'd rather the relationship be a tad adversarial. When the government makes a demonstrably legal request, companies have no choice but to comply, and in so doing they are naturally immune from prosecution or lawsuits. But when the government's request is not legal, it can go hang itself.

The president's assertion that we need to keep the cooperative juices flowing really doesn't hold water unless his objective is an extralegal avenue for the government to exploit. Bush has frequently demonstrated that he views the law as an annoying imposition on his executive prerogatives.

Americans unwilling to subject their constitutional liberties to the discretion of George Bush and Dick Cheney should abhor the notion that national security is necessarily built on the warm and fuzzy relationships cultivated between government and industry. It is not, and must never be.

When we make it so, we erode the liberties that make this nation great, and its citizens free. Those liberties have already suffered far too much erosion these past two presidential terms.

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I have previously noted Bush's difficulty obeying the original FISA law in Temporal Statutory Decay, posted more than two years ago.

Copyright (C) 2008 James Michael Brennan, All Rights Reserved