One of the things I would have wanted to ask Attorney General nominee Eric Holder (were I a Senator on the Judiciary Committee) would be if he thought Title II of the FISA modernization legislation passed last July was constitutional. Jon Kyl asked him if he thought the whole bill was constitutional. Holder responded that the law, having been updated by Congress, is constitutional.

As a reminder, Title II of the modernization of FISA was retroactive immunity for telecom companies that helped the Bush administration spy on Americans without warrant.

So either Holder hasn’t read Title II as passed by Congress this summer (and is thus not speaking about it) or he believes retroactive immunity is constitutional. Neither thought is encouraging as far as the rule of law is concerned.

Update:

There’s a caveat here. Holder hasn’t been read into the wiretapping program. He  doesn’t know what happened at the least filtered level, nor does he know the legal justifications that were used to conduct it. It’s possible that he’s withholding judgment on retroactive immunity’s constitutionality until he knows those details. But I think the question of Title II’s constitutionality isn’t one of specifics, but principles. Retroactive immunity for any crime strikes against the rule of law.

Update 2:

Kate Klonick, now of the Washington Independent, has more on Holder and FISA, including an exchange with Russ Feingold in which Holder seems to make clear that the President is not allowed to violate FISA.

Feingold: Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?

Holder: No, I don’t see that in the FISA statute.

This again is going to have bearing on how the Obama Department of Justice looks on the Bush administration’s actions under FISA.

Retroactive immunity for telecoms for two reasons. First it sets a vicious blow to the rule of law in America, regardless of what it is in regards to. Second, as the Bush administration hid behind national security and executive privilege, discovery in cases against telecoms became the only reliable way to find out what happened under Bush’s warrantless wiretapping program.

If Holder is read into the full wiretapping program and if he believes Bush violated FISA, then the quote above would mean that in the current Attorney General’s opinion Bush illegally wiretapped American citizens. How Bush and his associates would be able to escape prosecution at that point would be beyond me. Or more precisely, in such a scenario the decision to pursue charges against Bush et alia would become a political question and not a legal one.

Update 3:

Here’s video of the exchange between Feingold & Holder.