Immunity? That's A Problem
By Jeffrey Breinholt
In response to Andrew Cochran's latest post "No FISA? No Problem," the reason why no one has come up with a concrete example of an intelligence investigation suffering due to Congress' unwillingness to enact FISA reform is simple: this information - who the U.S. is currently targeting its FISA methods on - is classified, and therefore not subject to public discussion. The bill is hung up for one reason: disagreements over whether it should include retroactive immunity for telecoms. If telecoms that cooperated with what appeared to be legal government requests become fearful of being sued, intelligence will surely be lost while the government engages in protracted discussions with company compliance officers on the legality of their requests. That is the unfortunate legacy of an overlawyered culture. Moreoever, as I have written, telecoms were not held liable for the more serious abuses of the Nixon Administration, when American journalists and NSC staffers had their phones tapped without a warrant. This precedent makes one wonder about the legitimacy of the 40 or so cases currently pending against the telecoms. Who will pay their legal fees to fight these cases to the point of dismissal? The telecom customers, in the form of fees that are passed on to them, and the US intelligence community, who will find themselves dealing in an adversarial way with the FBI, perhaps even when presented with signed FISA orders. This is bad all around.
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