Former Attorney John Ashcroft has an op-ed in today's New York Times defending the retroactive immunity that will be granted the telecommunications companies in the pending FISA bills. His position is that because the Administration assured the telecommunications companies that it was acting lawfully, the companies really had no choice but to abide the Administration's demands. His position reads the Fourth Amendment right out of the Constitution and ignore FISA.
This statement by Ashcroft sums it up (and displays the arrogance of power emblematic of the entire Bush Administration):
If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.
No, absolutely not. Essentially, Ashcroft is relying upon the "Nixon Doctrine": If the President declares something to be lawful, it is. However, our Constitution is specifically designed to prevent such arrogation of executive power. The Fourth Amendment requires the executive branch to seek and receive judicial imprimatur for their actions, and FISA was enacted to ensure such judicial approval in the context of intelligence gathering.
So when the Attorney General comes a knockin', the telecommunications companies, who no doubt have extremely capable legal representation (I am certian they've heard about the Fourth Amendment and FISA), should have asked "Where's your warrant?" The Attorney General can give the telecommunications companies all the assurances he wants, but in the absence of a valid warrant, they acted at their own risk.