Moving closer to a showdown on telecom immunity

November 16, 2007

After several weeks of wrangling, debating, and positioning, the looming congressional showdown over retroactive immunity for telecommunications companies that cooperated with Bush’s warrantless-surveillance scheme is coming to a head.

Reflecting the deep divisions within Congress over granting legal immunity to telephone companies for cooperating with the Bush administration’s program of wiretapping without warrants, the Senate Judiciary Committee approved a new domestic surveillance law on Thursday that sidestepped the issue.

By a 10 to 9 vote, the committee approved an overhaul of the Foreign Intelligence Surveillance Act that dropped a key provision for immunity for telecommunications companies that another committee had already approved. The Senate leadership will have to decide how to deal with the immunity question on the Senate floor.

On Thursday night, the House voted 227 to 189, generally along party lines, to approve its own version of the FISA bill, which also does not include immunity.

So, where are we right now? The House version strengthens oversight and accountability, and does not give telecoms retroactive amnesty. The Senate Intelligence Committee and Senate Judiciary Committee passed similar bills, but the prior includes immunity while the latter doesn’t. It appears that Senate Majority Leader Harry Reid will have the discretion to bring one of the two to the floor.

Greg Sargent reported last night that Reid is “most likely” going to support the Judiciary Committee’s immunity-free version, though that’s obviously far from iron-clad.

It’s encouraging, but far from over.

There is, for example, Arlen Specter’s “compromise” amendment still out there.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the panel, is pushing a plan that would substitute the federal government as the defendant in the lawsuits against the telecommunications companies. That would mean that the government, not the companies, would pay damages in successful lawsuits.

Senator Sheldon Whitehouse, Democrat of Rhode Island, said in an interview after the vote Thursday that he would support a compromise along the lines of the Specter proposal.

Mr. Whitehouse was one of two Democrats who voted against an amendment proposed by Senator Russ Feingold, Democrat of Wisconsin, that would have banned immunity for the companies. “I think there is a good solution somewhere in the middle,” Mr. Whitehouse said.

I think this approach would be a big mistake, but if Reid proceeds with the Judiciary Committee’s version, the provision will no doubt be offered as an amendment on the Senate floor.

Of course, there’s also the veto threat on the horizon.

But the administration has made clear that President Bush will veto any bill that does not include what it considers necessary tools for government eavesdropping, including the retroactive immunity for phone carriers that took part in the National Security Agency’s wiretapping program after the Sept. 11 attacks.

For now, at least, things appear to be moving in the right direction.

Could someone help me understand why FISA needs to be overhauled?

  • Great Whitehouse, give lawbreakers a freeride on the taxpayers’ backs (that obviously means primarily the Middle Class). Thanks a bunch. Different issue, but the song always remains the same.

    Thank God for the few politicians like Russ Feingold. They need our support now more than ever.

  • I’m sorry, but Specter must think we’re stupid, and as much as I have liked Sheldon Whitehouse, I have to wonder what he’s thinking in saying he could support a Specter-style compromise.

    Specter wants this to be a matter of plaintiffs passing this off to the government to pay because the government told the telecoms that what they were being asked to do was lawful. Sorry – not buying it. I didn’t buy this deflection of guilt when my kids tried to pull it – “she told me to do it and said you said it was okay” – no court would buy it as to individuals who committed crimes – “Joe told me it was okay to put the money in that offshore account because the president of the company said it was okay.” At a minimum, both the perpetrator of the act and the entity or individual which authorized it should be held liable if it is determined that a crime was committed. How does Specter not know that? Why is Whitehouse okay with this concept? If Qwest was capable of independently evaluating the request and refusing to comply because the company’s lawyers determined that it was likely illegal, why do the other companies get a pass because they either failed to do the due diligence themselves, or reached the wrong conclusion?

    And why do I, as a taxpayer, have to pay so that some company does not have to be accountable for actions that may have negatively impacted me? In Bush world, the victim – the American people – also has to pay for being victimized?

    Someone needs to give these people a gigantic wake-up call.

  • Correct me if I’m wrong (and I know that you will), but Congress got stampeded into passing some very bad amendment to the FISA law before its summer recess. They only good thing about these amendments is that they expire 180 days after enactment.

    Although Bush loves the new FISA rules (known ironically as the “Protect America Act), people who care even slightly about the Bill of Rights thought it was an abomination. Thus the current need for revisions.

    The House of Representatives is the key to winning this one, because we have only 51 Democrats minus Lieberman and Feinstein on the right side of this in the Senate. The House needs to stick to its guns on this. I’m talking about you, Ms. Pelosi.

    Would Bush “put America at risk of a terrorist attack” just to protect his telecom buddies? That’s how Congress was stampeded last summer.

  • 18 USC 2511 generally says that anyone who “intercepts” a private electronic communication or “discloses” the results of that interception shall be imprisoned for up to five years. In addition, 50 USC 1810 says that anyone “who has been subjected to an electronic surveillance” of this sort can sue for punitive damages and attorney’s fees.

    I don’t see how this applies to government officials who wouldn’t have the capability to disclose such info.
    The telecoms broke the law. They need immunity, the fed might too, but the telecoms are the key violators.

  • The Specter ‘compromise’ is what will pass in the intrest of ‘civility’.

    I hope I’m proven wrong.

  • From news from a couple of days ago, “‘Privacy no longer can mean anonymity,’ says Donald Kerr, the principal deputy director of national intelligence. ‘Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information.'”

    This is precisely why telecom immunity is such a bad idea. Even through Kerr’s myopic view of privacy, BOTH the telecoms and the government failed in their roles to properly safeguard the public. Why did the telecoms roll in the firstplace? Was it because the CEOs were Bush Pioneers? Was there a quid pro quo? Did it somehow curry favor? The public’s trust has been breached by the parties we have entrusted with our information and can no longer be assured that our information may not be used maliciously against us. There should be no reward for doing the wrong thing.

  • the retroactive immunity for phone carriers that took part in the National Security Agency’s wiretapping program after the Sept. 11 attacks.

    What about the retroactive immunity for the snooping which went on *before* they had the excuse of 9/11 to cover their butts?

    And it’s funny (but not ha-ha) that, everyone here can see through Specter’s dirty trick, but Whitehouse — who, until now, seemed to have his head screwed on tight — cannot…

  • Why don’t they then write the immunity to be ‘any such help that occurred beginning no earlier than 9/12/2001’ and no later than some date at which should be when the court negated the Patriot addendum?

    …If they’re going to be honest, and all, about this patriotic stuff.

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