The most incendiary piece of Congressional business of the past several weeks has involved an extension of the Foreign Intelligence Surveillance Act (FISA). Contrary to his broken-record sermons about national security, President Bush has nonetheless presented a substantial obstacle to keeping America safe. He has threatened to veto any FISA bill that does not extend retroactive immunity for telecom companies who provided access to phone records for the purpose of tracking potential and known terrorists. At this point, Congressional and executive leadership have turned the FISA debate into a game of chicken where in the event of the U.S. actually being attacked, a significant quandary presents itself. Are the Democrats to blame for not passing a bill with retroactive immunity or are Republicans to blame for not forgoing this provision in order to deliver on their promises to keep America safe at all costs? While there’s no easy answer to this question, the real nugget of the story is the telecoms themselves.

Bush’s latest argument stipulates that the cooperating telecoms should not be punished because of cooperation with government during wartime. Since when did telecom giants become scared, innocent puppy dogs to be petted instead of punted? The argument that the acquiescing telecoms are somehow innocent victims only fulfilling their patriotic duty does not stand up to scrutiny for a few reasons. First of all, this was not some goodwill mission to aid the government during wartime, nor was it conscripted service. Verizon, AT&T, and Bell South were all paid for services rendered and they all did so of their own volition. With the amount of trained corporate lawyers on staff whose sole purpose is to defend against litigation, it seems unlikely that these giants couldn’t hold up their end of the story in court. That is, if they could prove that they had not broken any laws.

The real kernel of this whole governmental spat comes into play if the opposite is the case. If the telecoms could not prove that they had acted lawfully in providing phone records without FISA approval or warrants, the telecoms would be forced to make the argument that government agencies like the NSA had assured them that they would not be penalized for breaking the established law. That line of reasoning then shifts the spotlight away from the telecoms and onto the suits and ties in Washington. As you can surely imagine, opening the government to litigation creates a prickly situation for anyone seeking to avoid being the center of an ensuing “Wiretap-Gate.” Perhaps now you can imagine why the GOP is so insistent on a provision for retroactive immunity even if it means leaving gaps in counterterrorism capabilities. What also should be apparent is something beyond the Democratic leadership’s supposed crusade to preserve constitutional rights for American citizens. Denying retroactive immunity to telecoms in an updated FISA bill would expose the vulnerable underbelly of a GOP that they have been aiming to eviscerate for the past decade.

While the semantic battle rages on the House floor and White House, most are forgetting perhaps the most important component to the debate. Not every telecom company approached by the NSA complied with the request for cooperation. In comes the story of a second-rate telecom called Qwest Communications.

When the NSA first approached the major telecoms to allow the government access to phone records back in 2001, the majority complied with little resistance. However, Qwest stood out from the crowd by refusing to turn over millions of customer phone records per the NSA’s request. The company’s reasoning was that if the request did not comply with established laws and their action did not receive approval from the FISA court, then they could potentially be subject to substantial litigation. Sound familiar?

Lagging far behind the likes of Verizon and AT&T, Qwest has certainly not benefited from its refusal to comply with the NSA’s request over the past seven years. However, it has done no worse. The company was not lambasted by the media for being unpatriotic or sued by the government for noncompliance. In addition, I think it’s fair to say that most consumers who left Qwest between 2001 and 2008 did so not because of the company’s lack of cooperation with the U.S. government in wartime, but rather because of shoddy service. The story of Qwest’s noncompliance didn’t even leak to the blogosphere until 2006. The importance of Qwest in its basic form is the fact that its lawyers recognized the illegality of their cooperation and refused to participate. This is something any of the other telecoms could have done, but chose not to.

Maybe it’s just me, but somehow being paid to break the law by the U.S. government doesn’t add up to patriotism. It amounts to compensated illegality. And when my phone records are potentially sequestered in the computers of a government security agency without my consent, I damn well want recourse. You should too.

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