What's Really at Issue in the Intelligence Bill

by JEFF BREINHOLT February 22, 2008 Dennis Lormel is absolutely right in his recent post about the FISA renewal bill being held hostage to politics. I think there’s something going on that is even more worrisome.

When the PATRIOT Act was going through its controversy, I accepted an invitation to participate in a debate hosted by the Long Beach City Human Rights Commission in Southern California. Before the event, I had a short conversation with a woman in attendance, an opponent of the PATRIOT Act, who described her group’s goal of making individual police officers think twice before exercising their discretion. Audaciously, she expressed the hope that cops would weigh the prospect of being sued if they undertook certain actions authorized by the PATRIOT Act.
Is this something we really want? Cops know they can be liable for brutality, and that evidence they unconstitutionally seize can be suppressed. However, to increase the stakes with the threat of tort liability for acting in a way that is ostensibly authorized by law is a sure way of building a risk-averse police culture and jeopardizing public safety.I realize that there are plenty of lawyers suing the telecoms these days who are also involved in courageous lawsuits against terrorists, and that the issue of company liability for cutting corners in a regulated field is not a exactly analogous to cops being sued for acting in accordance with the PATRIOT Act. However, I have written about the dangerous trend of using litigation to discourage civic responsibility. The Arizona imams who were pulled off the Minnesota flight after their suspicious activity was noted by fellow passengers started their lawsuit by suing the passengers, in addition to the airlines. In another case from last year, a woman sued a bank teller for calling the police after noticing the cashier’s check she was trying to deposit was counterfeit. The message behind these actions was that people should think twice (or three or four times) before cooperating with the government. It is a terrible message to send, and I fear it’s being stoked by the debates over the immunity provisions for the telecoms.Of course, I am not saying that there is no room for compliance in regulated industries, and that commercial entities should ignore rules relating to how they must handle private information. Still, when we are talking about corporate efforts to assist sincere government actors in the age of terrorism, immunity seems not too big of a stretch. Something tells me that most Americans share this view, and that the bill will eventually be enacted with the immunity provisions in place. At least, that is my hope.

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