paul kiel notes that the real issue for the republicans in the FISA debate is telecom immunity. it sure seems that way. after all, the house was willing to pass a version of the bill without retroactive immunity, but the republicans opposed it.
however, i don't think the primary concern is protecting the telecoms. it's really about is keeping the federal courts from ruling on the legality of bush's warrantless wiretap program. direct challenges have failed because the plaintiff's can't prove they have standing. that is, to bring a lawsuit the plaintiffs would have to prove that they personally were among those surveilled under the program. just being a potential target isn't enough, you have to have proof that it already happened. and, of course, all of the relevant proof is classified, making a direct challenge legally impossible.
one way around the problem is the various lawsuits against the telecom companies. federal law requires telecoms to guard their customers' records unless a search is duly authorized by law. any customer of a telecom has standing to bring a lawsuit if they think their company may have unlawfully disclosed their records. but if the cases proceed, it will require the court to rule on whether bush's program was lawful. and we already know that it was not. during the period in question FISA required warrants for every instance of surveillance. president bush has already admitted that he authorized hundreds of taps without a warrant.
because the bush administration can't win the argument on the merits, it's working hard to keep the issue out of the courts. and that's what retroactivity is really all about. it's not just a way for telecoms to avoid liability, it's a way to prevent the courts from ruling that the bush administration blatantly violated the law.
