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Immunity: Not About Telecoms

Kevin Drum has a great post up explaining why he sympathizes a bit with the telecom companies who facilitated the Bush administration's warrantless wiretapping program:

Who's being asked to take the fall? The president? The Department of Justice? Congress? Of course not. It's the telecom companies who are being sued. ... [I]t doesn't seem right that the least culpable party is the one getting taken to court, while the most culpable parties--the president, the DOJ, and both Democrats and Republicans in Congress--get off scot free.

This makes a lot of sense. I sympathize with the telecoms too. It's worth emphasizing, though, that there was an ideal solution to this problem: the Specter–Whitehouse substitution amendment, which would have allowed lawsuits to go forward but would have substituted the United States as a defendant, letting the telecoms off the hook. But the administration, Senate Republicans, and a handful of Democrats conspired to kill this amendment. The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is.

Indeed, though my view is that House Democrats did the right thing by standing firm and letting the Protect America Act expire, they also deserve credit for making a good-faith effort to compromise on the issue--first by passing temporary FISA fixes, and then by supporting amendments like Specter–Whitehouse. But the fact that Bush was willing to let the law expire rather than compromise is telling--if reforming FISA isn't important enough for Bush to sacrifice immunity, then there's no reason for Democrats to unilaterally give in. Ted Kennedy had the most apt summary of the situation:

Think about what we’ve been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies.

--Josh Patashnik