Captain Amnesty

[Tim Lee]

John McCain earned the title "Captain Amnesty" for his work on immigration reform, but on Friday his campaign confirmed that he's pro-amnesty all around. A statement from the campaign said that (contrary to the remarks of one surrogate) McCain thinks that telecom companies who broke the nation's wiretapping laws should get a free pass. A statement from the McCain campaign says the Senator supports telco amnesty, but thinks it should be granted "with explicit statements that this is not a blessing for future activities."

As I pointed out back in February, this position doesn't make any sense. Our nation's surveillance laws provide for civil and criminal penalties for companies that participate in warrantless wiretapping programs. The purpose of those penalties is to give companies an incentive to follow the law. But if we give a free pass to companies that broke the law this time, will we be surprised when they're even more inclined to break the law the next time around? If McCain were really serious about the "don't do it again" caveat, I would expect that at a minimum, he would favor investigations and some kind of token penalty to at least acknowledge the principle that lawbreaking has consequences.

It's important to remember that we're not talking about a one-time lapse at a time of national emergency. It's not the case, for example, that these companies only participated in warrantless wiretapping in the days or weeks after the September 11 attacks. At least one telecom exec claims that the NSA began approaching telecom companies as early as February 2001, and these programs continued for years after the September 11 attacks without Congressional authorization or court oversight. Granting retroactive immunity under those circumstances would be a tacit admission that the law is toothless, and a green light to future telecom company executives that when the president asks them to break the law, they can do so without worrying about the consequences.