The National Review Online says that a "bad bill beats no bill." I can't support that logic. Andrew McCarthy is being disingenuous with the fear-mongering underlying this assertion:
[T]he current statutory authority for the intelligence community to monitor foreign terrorists overseas will end.
Well, yeah, and it should. But it's not the end of the world, as McCarthy would have you believe. Under expiring "statutory authority" the White House can do pretty much anything it wants, as the "overseer" is the Justice Department, not the FISA Court. Saturday, the original FISA language -- enacted, let me remind you, in response to White House indiscretion with wiretaps -- becomes law again. And under FISA the White House has always been able to tap-first-ask-FISA Court-for-approval-later. Always.
Moreover, authority for any current, existing tap doesn't end when the law does. Those authorities are up to 12 months in duration.
Are we really expected to believe that the White House is going to find a key terrorist on Sunday (after the current law expires) ... and then do nothing that they are legally empowered to do? That is the implication -- both by McCarthy and Bush.
And finally, yes, it's up to companies to be sure that what the government asks them to do is legal, especially when it's wrapped in secrecy and when there is a process in place (FISA) to provide authorization (FISA Reports to Congress Remember, Qwest refused the request.
See Senate grants Bush extraordinary, unchecked powers (editorial); Senate FISA update should move forward (editorial); Retroactive Immunity (editorial)