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The Miami Herald

No Retroactive Immunity for Unlawful Secret Wiretapping


The Washington dispute over extending the secret wiretapping law has fallen victim, not unexpectedly, to the fear-mongering and chest-thumping patriotism that has characterized so much of the post-9/11 debate over keeping the nation safe from terrorism. Once again, the administration has claimed that if it doesn't get its way, the terrorists win. Unfortunately, the administration is resorting to exaggeration and hyperbole to make its case and attempting to demonize the opposition.

Surveillance decisions

The House of Representatives left town last week and allowed an update of the so-called FISA legislation to expire. President Bush claimed this lapse ''would jeopardize the security of our citizens.'' How exactly that will happen is not clear, though. All present surveillances would continue, and lawful warrants would continue to be issued by the court established by the Federal Intelligence Surveillance Act.

Procedurally, the only thing that would be lost is the administration's ability to make unilateral decisions about secret surveillance. The only other issue in this debate is a provision in the Senate-passed version of the bill that gives telephone companies retroactive immunity from prosecution. The administration's stance is wrong in both instances.

Between 1978 and 2004, the court's record is one of extreme compliance with the executive branch -- it approved 18,748 warrants and rejected five. The court was created precisely for the purpose of acting expeditiously and in secret -- and it worked well under four presidents.


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The 9/11 Commission declared that in this new era of terrorism, it is imperative to maintain a balance between protecting civil liberties and protecting the homeland: ''This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.'' The FISA court, as compliant as it is, remains an indispensable part of this system of checks and balances and is needed now more than ever.

A bad idea

As for retroactive immunity, that simply is a bad idea. Telecommunications companies that comply with lawful requests are, and always have been, immune for those actions. The lawsuits that have been filed seek to discover how these companies aided and abetted the government in unlawful surveillance. If they get immunity, no company would have any reason to refuse to comply with illegal requests in the future.

The dispute, in short, seems to have little to do with national security and everything to do with secrecy and increasing executive power. The 9/11 Commission had it right: If we surrender our liberties for the sake of security, we lose those liberties and don't improve our security.

Copyright 2008 Miami Herald Media Co.

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