Retroactive immunity

If you're an AT&T executive confronted with armed federal agents demanding access to customer records as part of the government's warrantless wiretapping program put in place after 9/11, what do you do?

Standing up for the Fourth Amendment may be wonderful in principle, but in practice, the pressure to cooperate would be immense.

In the wake of Sept. 11, many telecommunications companies did just that. Today, there are some four dozen lawsuits accusing those companies of improperly acceding to government demands.

On Tuesday, the Senate made permanent an anti-terror measure passed in August allowing intelligence agencies to intercept -- often without a warrant -- phone calls and e-mails of U.S. citizens communicating with those overseas.

As part of the bill, the Senate approved by a 67-31 vote a provision granting retroactive immunity to the telecommunications companies now facing lawsuits for cooperating with the government after 9/11.

Many Democrats were livid over the amendment.

"It is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were," said Sen. Russell Feingold, D-Wis. "And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance."

Really? The burden is on a private company to ensure that a request from the federal government is constitutional when it involves a secret court and national intelligence?

In fact, Sen. Feingold and other Democrats, including Barack Obama -- Hillary Clinton didn't show for the vote -- were carrying water for their friends at the trial bar, who are already seeking millions of dollars through lawsuits against various telecommunication companies. Is it really fair that the trial lawyers are free to shake down companies that thought they were acting in good faith by helping the government fight the terror war?

The bill now goes to the House, which passed a previous version without the immunity provision. And while debates over the constitutional ramifications of allowing this type of surveillance are important and appropriate -- How far down this road can we go if the Bill of Rights is to survive? -- setting up major corporations as fodder for the trial bar is counterproductive.

If it's going to approve this bill, the House should agree to the immunity provision.