A recent article in Slate discusses how legal policy in the United States should be fixed in the post-Bush era. There are many things in it with which I wholeheartedly disagree. Perhaps the most egregious case is in relation to providing immunity to telecom firms that carried out illegal wiretaps for the administration. Jack Goldsmith argues:
Private-industry cooperation with government is vital to finding and tracking terrorists. If telecoms are punished for their good-faith reliance on executive-branch representations, they will not help the government except when clearly compelled to do so by law. Only full immunity, including retroactive immunity, will guarantee full cooperation.
I think the bigger danger here is providing a precedent that firms can break the law when asked by the administration, then bailed out afterwards. Only fear of prosecution is likely to make firms obey the law in the first place. Providing immunity would invalidate the concept of the rule of law, and open the door to more illegal actions carried out by the executive branch. “Full cooperation” is precisely what we do not want to encourage.
If government wants to intercept the communication of private individuals, it must be a policy adopted through the due course of law. People need to know what it involves (though not necessarily the details of exactly how it works), who supported it, and how those supporters justified the choice. Greater security from terrorism at the cost of a more opaque and lawless state is not a good tradeoff. Company bosses should fear that they will be the ones in the dock when evidence emerges of their engaging in criminal acts, regardless of who asked them to do so. The alternative is more dangerous than the plots that warrantless wiretapping sought to foil.