Legal News

Debate over Telecom Immunity Rages On

By Dan Slater

The issue isn’t whether Congress should block cooperation between telecom companies and the government when the National Security Agency wants to engage in eavesdropping on American soil. The debate is about whether that cooperation should be subject to judicial oversight, as the law has required for the last 30 years, or whether instead the telecom companies can simply ignore the law when the president asks them to. — Timothy Lee of the Cato Institute, writing in Slate

We’ve now digested much of the coverage on the Senate’s vote Tuesday to reauthorize a law giving government greater powers to eavesdrop in terrorism cases and approving immunity for telecoms that cooperate in domestic spying. (Here are stories on the bill’s passage from the AP and the NYT.) Following the decisive 68-29 vote, Democrats have been accused of lying down, as detractors of the bill argue that sophisticated telecoms like Verizon and AT&T don’t need explicit assurances from government that they won’t be prosecuted for handing over information; they’re perfectly capable of complying with the Foreign Intelligence Surveillance Act themselves.

As Lee puts it in Slate, the Senate is undermininig “the fundamental purpose of the warrant process, which is to ensure independent review of domestic spying activities.”

He continues: “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.”

Proponents of the bill say telecoms like Verizon and AT&T can’t defend themselves in court because the Bush administration prohibits disclosing classified documents that could exonerate them. Lee says that’s hogwash, arguing that “courts have a long track record of reviewing sensitive information in private and dismissing cases that cannot be litigated fairly without exposing state secrets.”

Loyal LB’ers, what say you? Should lawyers at Verizon and AT&T be deciding what FISA requires of them, or is that decision best left to the executive branch?

Full post as published by Law Blog - WSJ.com on February 14, 2008 (boomark / email).