For a more substantive take on the whole FISA/telecom immunity issue than I’ve been able to muster, check out my friend libertarian tech policy analyst Tim Lee’s Slate article from a few days ago which runs down most of the relevant information. It is, however, worth dwelling here a bit on the precedent. If the executive branch comes to a private company and asks it to do something illegal, the executive branch has powerful ways of making the company see things its way. Being on the good side of the incumbent administration is a good place to be.
But still, companies will think twice about cooperating with illegal requests if they’re sure that doing so will come around and bite them in the ass in the long run. But if you create the situation the Bush administration is proposing — where failure to comply with illegal requests has negative consequences, but agreeing to comply with illegal requests lets you off scot free — then no company going forward is going to have any reason to refuse to comply with any sort of illegal requests. In essence, the immunity provision would gut whatever other restrictions the new FISA law might contain. Meanwhile, it’s good to see Steny Hoyer standing tall:
Now, the president asserts that the expiration of the protect America act will pose a danger to our country. The former National Security Council advisor on terrorism says that’s not true. Former assistant attorney general says that’s not true. Numerous others, and the chairman, has asserted that’s not true. Why is that not true? Because FISA will remain in effect. The authority given under the protect America act remains in effect. And if there are new targets, the FISA court has full authority to give every authority to the administration to act. So i tell my friends, we are pursuing the politics of fear. Unfounded fear. 435 members of this house and every one of us, every one of us wants to keep America and Americans safe. Not one of us — not one of us wants to subject America or Americans to danger. The president’s assertion is wrong. I say it categorically. The president’s assertion is wrong.
As I argue in Heads in the Sand, it’s important to approach these things from a self-confident point-of-view rather than a defensive one. When Bush says something outrageous, you have to act like you’re outraged not like you’re frightened that his outrageous statements will cause the voters to punish you. Confidence alone, obviously, isn’t nearly enough to win political fights but it is a necessary precondition of doing so.