Ratner: Why should Congress make the decision on wiretapping and not the court? (2 of 3)
PAUL JAY, SENIOR EDITOR: The other big issue in this legislation is this question you raised before about immunity for the telephone companies who have already participated in what clearly was already illegal wiretapping. Here’s what Vice President Cheney had to say about that.
DICK CHENEY, US VICE PRESIDENT: We’re asking Congress to update FISA, and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the US government in the effort to intercept international communications of al-Qaeda-related individuals. The fact is the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations, there is no alternative to seeking assistance from the private sector.
JAY: Cheney’s saying that if we don’t give immunity to these telephone companies, they won’t want to cooperate in the future ’cause they never know when they’re going to get hit, and that’s going to jeopardize national security.
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: Well, he’s talking about giving them immunity for what might potentially be past crimes or past conduct that could result in civil damages by people like my office and other places that were wiretapped in a conspiracy between, essentially, the national security agencies, the White House, and the telecoms. The question I have, the fundamental question, is why should the Congress be deciding that? And why shouldn’t that be a matter up to the courts? If they in good faith did something that had objective reason, it may or may not be that the court will dismiss the cases. But in an American justice system, the idea that the Congress is interfering with putting itself into a court situation in which the telecoms may have carried out illegal conduct is really a violation of our fundamental separation of powers issues. So we start from there. The second place you start from is you don’t want a situation where the telecoms are encouraged to cooperate with the government in breaking the law. You want them to pay a penalty for that. When a government comes to a telecom, it shouldn’t just willy-nilly turn over all its wiretapping, electronic surveillance, and its computers to the government and let them do whatever they want. There at least should be a barrier against the government violating the law. They shouldn’t enter into some conspiracy. What an immunity agreement passed by Congress will do will essentially say to the telecoms, “Whenever the government comes to you, whatever the law says, don’t worry about it. Just break the law. You’ll be protected no matter what.” So what he’s doing, what Cheney’s doing here is actually encouraging illegality, clearly and
simply encouraging flat illegality.
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