Wiretapping and Immunity Law and Policy

Debating the legality of the now-discontinued Terrorist Surveillance Program has become something of a hobby, especially as Congress continues to consider immunizing telephone companies from civil suits. (Several such suits have been filed, and some ruled upon.)

Lately, I've been going at it with Margalis, both at Daily Kos and at his Common Nonsense blog. Here's my last effort, in comments on Margalis's blog:

1) Presidentially-authorized warrantless wiretapping of foreign intel national security information (which the Administration labeled the TSP) is not clearly illegal. The Administration argues that Article II of the Constitution conveys such power. The Supreme Court refused to decide the question in 1972. But all Federal Circuit courts that have reached the issue have sided with the Executive Branch. And if the authority derives from the Constitution, it could not be voided by the FISA statute. Thus, far from being clearly illegal, logic and the weight of the precedent suggests the TSP was lawful.

2) Private parties who cooperate with the government in an emergency have long enjoyed a qualified immunity for acts not clearly unlawful. As a rough analogy, think good samaritan laws, immunizing those who attempt to offer medical care in a crisis, even if the samaritan gets it wrong. So -- even apart from questions of standing and justiciability -- the telcos are unlikely to be liable in civil suits.

3) The fact that there's only a small chance the telcos are liable hasn't stopped a flock of tort lawyers from suing them, because the low probability outcome could produce huge tort damages and because many such lawyers are motivated by politics (a discovery fishing expedition) rather than money. Regarding the money, the taxpayer money spent by the Federal Courts, plus the purely private money invested by the lawyers, are thus wasted resources. Ordinarily, the tiny chance of success would dissuade most such plaintiffs--but the anti-Bush impetus is not subject to the normal discipline of the marketplace. And the largest costs necessitated by the thicket of litigation will be born by the telcos--and ultimately by ratepayers like you and me.

4) For these reasons, retrospective immunity is appropriate.

Conclusion: I started our debate by asking that immunity opponents "at least account for," rather than "ignore," "the actual arguments." Too often, those opposed to the former TSP seem never to have familiarized themselves with the Administration's position or presume all such arguments are stupid.

Your replies to date hardly have advanced beyond square one. You presume the TSP is illegal. You never explain the public interest in wasting billions on claims better vindicated by voters, not judges and juries. I get that you didn't like the TSP--but your remedy arrives the first Tuesday after the first Monday in November.

MORE:

Margalis has replied here and here. I'll post a response soon.