Yesterday, by a vote of 68 to 29, the Senate approved the surveillance bill favored by the White House, which extends the powers granted by the Protect America Act and gives telecommunications companies retroactive immunity from liability for assisting the National Security Agency with its illegal warrantless eavesdropping program. The House version of the bill, which includes more judicial oversight and leaves out the retroactive immunity, still needs to be reconciled with the Senate version. Here are a couple of questions the House should consider before going along:
1. Why is retroactive immunity necessary to guarantee future cooperation? In a press release I just received, the White House insists "this provision is critical to ensuring the future cooperation of electronic communication service providers." It seems like immunity for future assistance, which the carriers already have, should do the trick. If the real concern is that the telecommunications companies should not be punished for cooperating with a program the administration assured them was legal, that's precisely the sort of issue that should be litigated, especially since testing that defense would highlight the administration's dishonesty and lawlessness.
2. If the government should not have to bear the inconvenience of obtaining a warrant to monitor the communications of suspected terrorists simply because the targets are talking to people in the United States, why should it need a warrant simply because the targets themselves happen to be in the United States? The emergency, wartime logic that permits warrantless surveillance of foreign-to-domestic telephone calls and email messages applies equally to communications that are entirely domestic. A future administration is apt to demand that Congress further amend the Foreign Intelligence Surveillance Act to make its treatment of anti-terrorist eavesdropping consistent.