“Here in the U.S.,” writes Dan Henninger of the Wall Street Journal, “our politics has spent much of the year unable to vote into law the wiretap bill, which is bogged down, incredibly, over giving retrospective legal immunity to telecom companies that helped the government monitor calls originating overseas. Even granting there are Fourth Amendment issues in play here, how is it that Speaker Nancy Pelosi, Hillary Clinton and Barack Obama cannot at least say that class-action lawsuits against these companies are simply wrong right now?”
Henninger is concerned that our politics, which seems to go forward in a time warp, will not be able to adjust to the modern reality in which several British citizens plotted to blow up seven air lines carrying American passengers. The seven are on trial in Britain.
“Philip Bobbitt,” Henninger writes, “author of the just released and thought-provoking book, 'Terror and Consent,' has written that court warrants are 'a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.' Planning atrocities is precisely the point. 'Atrocity' is a cruel and ugly word, but it has come to define the common parameters of the world we inhabit. It is entertaining to watch the candidates trying to convince the American people of their ability to be presidential. It would be more than nice to know, before one of them turns into a real president this November, what they will do – or more importantly, will never do – to stop what those eight jihadists sitting in the high-security Woolwich Crown Court in London planned for seven America-bound airliners over the Atlantic Ocean.”
At the Washington Post, David Ignatius notes that the CIA will in the future be hamstrung by, among other things, the unwillingness of some in Congress, notably US Sen. Chris Dodd, to provide what Dodd calls “retroactive immunity” to US corporations that assisted the government in providing information necessary to thwart planned atrocities.
The expression “retroactive immunity” is rhetorically freighted since most provisions of immunity are retroactive. The important question is: Do we want the co-operation of telecom companies in providing to US intelligence information that may thwart planned atrocities? Without immunity from prosecution, US firms will not provide such information, as British corporation regularly do. In Britian, the burden of proof that must be met to trigger an investigation is much less obstructive than is the case in the United States.
Ignatius, by no means a neo-con, writes, “The general mistrust of intelligence is spilling over into the agency's contacts with U.S. corporations. Companies that used to cooperate in providing nonofficial corporate cover for officers or in highly classified programs to combat, say, nuclear proliferation are getting nervous that they'll be exposed to legal consequences if there's a scandal. That's the real importance of granting immunity to telecommunications companies that cooperated in the Bush administration's terrorist surveillance programs. They did so in good faith, assured by government officials that their actions were legal -- and now they face a barrage of lawsuits.”
"Corporate CEOs considering whether to help the government today tell intelligence officials that they would like to be patriotic, but they can't expose shareholders to the risk of litigation. That's a worry Congress should help remove.”