You may have noticed that I’ve done precious little blogging on the Congressional FISA debate. One reason is that I didn’t feel I knew about the details to comment intelligently. Another is that I didn’t feel I had much to add; it goes virtually without saying at this point that the Bush warrantless wiretapping program was unconstitutional and designed to combat a nonexistent threat. But I also have a sneaking suspicion that maybe, just maybe, telecom companies deserve immunity. Skepticism is always a good policy when it comes to Bush administration initiatives, of course, but at some level it felt unjust to punish AT&T for Michael Hayden’s sins. Today, Kevin Drum made the case for a little sympathy for the devil:
[W]ho’s being asked to take the fall? The president? The Department of Justice? Congress? Of course not. It’s the telecom companies who are being sued.
Now, it’s inevitable that some people are going to read this and think that I’m concocting some kind of defense for telecom immunity. I’m not. I oppose it. In the end, the telecoms are big boys with big legal staffs, and they knew exactly what they were doing — and providing them with retroactive immunity at this point sets a terrible precedent and creates all sorts of perverse incentives to break the law in the future. At this point, if they think they can make a case that they acted in good faith and shouldn’t be held accountable, they need to make it to a judge and jury. If they have a good case, they’ll win. If they don’t, they’ll lose.
Still and all, the reason I’m not hellbent on this view is because it doesn’t seem right that the least culpable party is the one getting taken to court, while the most culpable parties — the president, the DOJ, and both Democrats and Republicans in Congress — get off scot free. Sure, that’s life. It’s unfair sometimes. I get it. But I don’t have to like it.
Like Kevin, I’m leaning against immunity. But I think the issue’s more complicated than many on the left, or in libertarian circles, make it out to be.