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FISA Debate: Immunity for Whom?

Spying.jpg
Spying.jpg

Illustration by: Matt Mahurin

The debate over how to modernize the nation’s international spying laws in the midst of its so-called war on terror was stepped up a notch last Friday, after intelligence officials warned that some phone companies are refusing now to cooperate fully because Congress has yet to grant them immunity for potentially illegal cooperation in the past.

“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell wrote to House leaders Friday. “Because of this uncertainty, some partners have reduced cooperation.”

But as the Washington Post reported Saturday, all the companies have agreed to participate fully in the program. That development begs the question: If the companies are all cooperating without retroactive immunity, how necessary is retroactive immunity to keeping the nation safe in the future? Some legal experts say the immunity provision was written less to protect the nation and more to protect the telecom industry from expensive litigation — not to mention protecting the White House from embarrassing revelations about the targets of the spying program.

As Bruce Ackerman, a law professor at Yale University, said last week: “The question of retroactive immunity cannot conceivably affect the future actions of the telephone companies. It is simply illogical for Director McConnell to claim otherwise. If we want to maximize the cooperation of telephone companies in the future, the way to do this is to grant them future immunity, not immunity for past actions. The Administration somehow forgets that time moves in only one direction.”

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