The Bush administration wants the power to grant legal immunity to telecommunications companies that are slapped with privacy suits for cooperating with the White House's controversial warrantless eavesdropping program.
The authority would effectively shut down dozens of lawsuits filed against telecommunications companies accused of helping set up the program.
It's not just that the administration wants this, it wants it now, and it's negotiating with Congress to give the power to the attorney general to grant immunity. At least some Congressional Democrats are demanding narrower authority than the White House would like.
Democrats say McConnell's first draft of the immunity proposal is far too murky. Sen. Ron Wyden, D-Ore., an intelligence committee member, fears the language would go far beyond protecting private companies and their employees, also giving cover to any government officials who may have broken the law.
''I and others are going to make sure that anything that is done is done in a narrow, targeted way,'' Wyden said.
Unfortunately, the Democrats are split on this issue.
There is a divide among Capitol Hill's majority Democrats about whether the companies deserve any protection. Some believe they were operating in good faith, on orders that appeared to be lawful. Others believe lawyers at the companies had a responsibility to ensure the requests weren't an abuse of presidential power.
This another case in which the decision about corporate liability should be given by the court, not by the White House lawyer -- that's the way the position of Attorney General has been used by the Bush administration. Any proposal to give this kind of power to a Bush-appointed AG should be looked at very carefully by Congress.
One former Justice Department official raises an interesting question.
David S. Kris, former associate deputy attorney general for national security issues, said the debate over immunity raises a broad policy question: ''To what extent is the private sector supposed to be a check on government power?''
Answering that question is difficult, he said, because lawmakers and the public don't know exactly how the government crafted its request for cooperation. ''If the attorney general says, 'Your country needs you to do this to save lives,' that may generate some sympathy for a company that cooperates,'' Kris said.
How the government conducts surveillance during national security investigations is expected to be a leading issue when the Democratic-controlled Congress returns next week and contemplates changes to FISA.
But a judge questions this immunity authorization for the right reason:
U.S. District Judge Royce C. Lamberth, who presided over the 11-member FISA court from 1995 to 2002, believes judges play an important part of the process.
The value added by having judges in the process ''is that we recognize the rights of the person who is not represented,'' said Lamberth, who continues to follow FISA matters. ''We're ensuring there is some valid national security purpose. I don't know why you wouldn't want that value added.''
We do. We know that this administration -- which has been both seriously incompetent, partisan, and corrupt -- is likely to use the authority to cover up its own malfeasance. The Bush administration should never be granted such power. And, on principle, neither should even the cleanest adminstration.