Why Immunity Is Necessary for FISA Reform

Conn Carroll /

Congress has had 178 days since the Protect America Act was signed on August 5, to come to an agreement on how to modernize the Foreign Intelligence Surveillance Act. Now it appears they will have another 15. Everybody agrees the 1978 act is hopelessly out of debate, but those on the left always gloss over why, instead scaring their followers with stories about how the Bush Administration is reading everyone’s email and listening to everyone’s phone calls. A quick review of the known facts demonstrates why the bi-partisan FISA changes ought to be passed by Congress and why they must include immunity for telecom companies from nuisance lawsuits.

A group of highly respected former Justice Department officials, including ex-AG Alberto Gonzalez critic James Comey, told the Senate that allowing this litigation continue would “produce perverse incentives that risk damage to our national security,” because “both telecoms and other corporations in the future will think twice before assisting any agency of the intelligence community seeking information.”

The group admitted “we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities” but the proper forum is congressional oversight not “a public lawsuit against private companies that were asked to assist their nation.”

The fact that Congress is again asking for another extension to address this vital national security issue is just more evidence that the legislative branch should not be micro-managing foreign intelligence gathering. Roger Pilon, a scholar at the libertarian CATO Institute writes:

John Locke, no sometime civil libertarian, put it well when he observed that the foreign affairs power “is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive. The Federalist’s authors, James Madison, Alexander Hamilton and John Jay all agreed. The remedy for executive incompetence or recklessness in foreign affairs is political – not legislative, much less legal. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy. What better evidence than these surveillance fits and starts.

This is why Congress’ new call for another extension makes a mockery of their underlying policy argument. Congress moves way to slow to be micromanaging foreign intelligence gathering techniques. The law will always be behind the technology. So the question is whether we want companies to help defend our nation when doing so may technically violate an obviously outdated law like FISA, or whether we want our intelligence agencies to go blind every time Congress moves slowly.