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Should a person who breaks the law be given retroactive immunity because he thought he was doing the right thing and because the government asked him to do it? The short answer is no. The law is the law, and it should be applied equally to all, a good prosecutor would say. Ignorance of the law is no excuse - and, in this case, a poor one at best.
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This is the commonsense principle that should guide Congress as it considers what to do about the National Security Agency's warrantless wiretapping program. The Bush administration wants lawmakers to pass legislation that would give retroactive immunity to telecommunications companies that helped the NSA tap Americans' phone calls without a warrant. Most of the phone companies cooperated with the NSA's wiretapping requests, which increased after the Sept. 11 attacks. Recently, though, it has been learned that one company, Qwest of Denver, refused to go along.
Bravo to Qwest for understanding that no one is above the law, not even the federal government. It is especially important to be vigilant now, when authorities are saying that "extraordinary circumstances" warrant an exception. President Bush says that the search for terrorists and criminals justifies sidestepping the courts to violate Americans' privacy.
In truth, there is no good reason to do this. The NSA can quickly and easily obtain court orders for all the surveillance it needs under provisions of the Foreign Intelligence Surveillance Act. This law was passed in 1978 specifically to provide court review of government wiretapping. The irony here is that the FISA court reflexively approves nearly every government-wiretap request presented.
The president and phone companies are in a hurry to get a new retroactive-immunity law now to fend off a slew of lawsuits filed by various groups that champion protections for privacy rights and civil liberties.
In the Senate, the Intelligence Committee approved a measure that would give the phone companies the immunity they want, while the Judiciary Committee is considering an alternative approach. The House, however, has the best approach. It has approved the Restore Act, which would require FISA court approval for wiretaps in most cases.