The president’s warrantless surveillance program and his decision to go it alone — without input from Congress or the courts — have had devastating consequences. One is that private companies, which would normally comply with legitimate national security requests, now have incentive to say no.
Here’s why. Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.
Today there is significant debate about whether the underlying program — the president’s warrantless surveillance plan — was legal or violated constitutional rights. That is an important debate, and those questions must be answered.
In the meantime, however, these companies are being sued, which is unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future.
[…] The fact is, private industry must remain an essential partner in law enforcement and national security. We face an enemy that uses every tool and technology of 21st-century life, and we must do the same.
If American business — airlines, banks, utilities and many others — were to decide that it would be too risky to comply with legally certified requests, or to insist on verifying every request in court, our intelligence collection could come to a screeching halt. The impact would be devastating to the intelligence community, the Justice Department and military officials who are hunting down our enemies.
Wait a minute — aren’t we moving the goalposts here? If FISA is a bad idea, then let’s work on that, not on giving a blanket amnesty to firms who SHOULD HAVE KNOWN BETTER!!