Mike McConnell defends the administration's FISA bill in today's Post. He addresses the retroactive immunity issue and states that providing retroactive immunity is crucial to terrorist surveillance. I don't buy it. Why would a private company refuse to assist in legal surveillance now because they'll get in trouble for illegal surveillance that has already happened? You'd think that the telcos would accept the past and move on. After all, if they're all doing things according to the law now, why would retroactive immunity matter?
Unless, of course, the current surveillance that McConnell is asking the telcos to help out with is illegal.
The only message that retroactive immunity sends to the telcos is that they can break the law with impunity and expect Congress to bail them out whenever they do. If your current activity is legal, retroactive immunity means nothing to you. But if the spies are asking you to break the law, wouldn't you want a guarantee that what you're doing is going to be forgiven by Congress? And wouldn't you be a little hesitant to engage in more illegal activity if Congress is reluctant to forgive your past indiscretions?
It's clear that the spies want to engage in illegal surveillance, and that they believe that they have to do so to do their job. So why does effective surveillance require illegal activity? What objectives can be accomplished by illegal activity that can't be accomplished legally, and are these objectives worth a revision of the law? To my knowledge, no supporter of intelligence law revision, McConnell included, has sufficiently answered this question yet. They should at least attempt to do so.