Immunity for wiretap assistance is right call

November 04, 2007|By Lee H. Hamilton

If the local fire company asked for your help putting out a neighbor's blaze, you would not force the firefighters to justify their request. You would just help, right? That's what the phone companies did when the Bush administration asked them in secret for help with wiretaps to target al-Qaida communications into and out of the country.

However, the president's warrantless wiretap program caused a furor when it became public. The administration had circumvented the Foreign Intelligence Surveillance Act, raising many doubts about the legality and even constitutionality of its wiretap program. The controversy prompted class-action lawsuits against phone companies that cooperated with the government.

The Senate Intelligence Committee has reported out a bipartisan bill that would bring this wiretap program back under the FISA statute and court review. It would ensure the legality and robust congressional oversight so lacking in the original program. It also would give the phone companies immunity for their previous actions.

The committee made the right call. To the extent that companies helped the government, they were acting out of a sense of patriotic duty and in the belief that their actions were legal. Dragging them through litigation would set a bad precedent. It would deter companies and private citizens from helping in future emergencies when there is uncertainty or legal risk.

The help and cooperation of all our citizens are vital in combating the threats we face today. Companies in various sectors of the economy are going to have information that could save the lives of thousands of Americans. When they respond in an emergency, at the call of our highest elected officials and on assurances that what they are doing is legal, they must be treated fairly. To do otherwise would put our security at risk.

This is particularly true of communications companies. They are critical to our intelligence and "early warning" against terrorist attacks. The increasing complexity of communications technology has made the voluntary cooperation of these companies vital.

Government actions require public review. Actions by private companies in response to government requests also should place the burden of accountability on the government. We should not expect private companies to second-guess the propriety and legality of government requests. That is the job of our public servants in the executive branch, the legislators who oversee them, and ultimately the courts.

Unless Congress provides immunity, the clear message will be that private citizens should help only when they are certain that all the government's actions are legal. Given today's threats, that is too high a standard. We should hold public officials accountable for their actions - and hold harmless private citizens and companies when they respond to government requests to help protect us.

Former Rep. Lee H. Hamilton is president and director of the Woodrow Wilson International Center for Scholars and was co-chairman of the 9/11 commission. His e-mail is lee.hamilton@wilsoncenter.org.

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