Common Cause Blog

FISA bill passes House; no retroactive legal immunity for telecoms

While the Senate was willing to grant retroactive legal immunity to telecommunications companies that submitted to the White House's request for them to spy on Americans without a warrant, the House today voted to renew the surveillance bill without granting such legal immunity.

The House on Friday narrowly approved a Democratic bill that would set rules for the government's eavesdropping on phone calls and e-mails inside the United States.

The bill, approved as lawmakers departed for a two-week break, faces a veto threat from President Bush. The margin of House approval was 213 to 197, largely along party lines.

Because of the promised veto, "this vote has no impact at all," said Republican Whip Rep. Roy Blunt of Missouri.

The president's main objection is that the bill does not protect from lawsuits the telecommunications companies that allowed the government to eavesdrop on their customers without a court's permission after the Sept. 11, 2001, terrorist attacks.

Break the law

UPDATE:The FISA bill that did not contain retroactive immunity for the telecom companies failed in the Senate today, 60-34, and the rest of the debate and voting will take place on Monday.

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In a moment the Senate will take up the issue of FISA--I'm writing this with the hope that the debate takes more than a few minutes, and perhaps stretches into the next couple days. The big question for me and for many of us is whether the bill will contain a provision granting blanket, retroactive immunity to telecom companies that allowed the government to spy on Americans without a warrant.

The issue hasn't changed over the past few months: this is a question of whether it's okay to break the law or not, and whether, if an individual or company appears to have broken the law and violated the Constitution, that person or company will be held accountable. Granting retroactive legal immunity to the telecom industry before the Congress has had a chance to investigate their actions and before challenges to their actions in court have been concluded amounts to undermining the process of justice and rule of law in this country.

That's a big question. Meanwhile, Credo Action (formerly Working Assets) has put together an action center that points a spotlight on the presidential candidates and the debate on FISA. More below the fold.

Telecom amnesty dead, for now

UPDATE (Monday, 9 a.m.): The Washington Post this morning clarifies that Senate Majority Leader Harry Reid is not putting retroactive immunity on hold forever; he's just pushing back that debate by a couple months and may still cave to the White House. Senators Chris Dodd and Patrick Leahy remain vigorously opposed; hopefully they'll spend the next couple months laying out the case to their caucus and the majority leader.

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Some good news, despite the Wall Street Journal's claims to the contrary: it appears that the Congress will not grant blanket immunity to the telecom industry for allowing warrantless wiretapping by the government.

The temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.

There's no reason for Congress to retroactively grant immunity to a powerful special interest like the telecommunications industry for what appears to be illegal activities. The Bush administration is claiming that simultaneously (1) what they did isn't illegal, (2) they should be given legal immunity anyway, and (3) they can't tell us what they did because it's a national security issue. It seems that they're trying to have it both ways. Congress is wise to delay until this issue can be properly resolved, and questions of executive branch overreach and abuse of power are answered in the light of day.

Opposition to telecom immunity finally growing

Some welcome news: the top Democrat and Republican Senators on the Judiciary Committee are cooling to the idea of telecom amnesty.

Committee Chairman Patrick J. Leahy (D-Vt.) and the ranking Republican, Sen. Arlen Specter (Pa.), had said that before even considering such a proposal, they would need to see the legal documents underpinning the program, which began after Sept. 11, 2001, and were put under court oversight in January.

On Tuesday, the committee was given access to some of the documents. But Leahy said yesterday that he had a "grave concern" about blanket immunity, saying that "it seems to grant . . . amnesty for telecommunications carriers for warrantless surveillance activities."

This should absolutely not go through. Granting blanket immunity to the telecoms for permitting warrantless wiretapping by the Bush administration would be doubly tragic: (1) it simply lets the telecoms off the hook for illegal activity, without any due process, a result that can only be seen as an affront to the law and to justice, and (2) it would eliminate the greatest point of leverage in investigating the extent, nature, and legality of the government's domestic spying program. If the telecoms are preemptively off the hook, they have little to fear by blocking investigations into their actions and, by extension, those of the power-hungry executive branch.

We're not out of the woods yet, though. Leahy and Specter are hesitating, but they're not drawing the line in the sand, though Sen. Chris Dodd did that last week. Here's more from the two ranking Senators.

Dodd blocking telecom immunity in Senate

In the evolving fight to preserve the rule of law by not granting retroactive amnesty to the telecom companies who allowed warrantless wiretapping--i.e. domestic spying--on Americans, Sen. Chris Dodd has made a series of bold steps.

He first put a 'hold' on the bill, stopping it from reaching the Senate floor.

Mr. Dodd, announcing his hold on the proposed legislation, described the immunity proposal as "amnesty for telecommunications companies that enabled the president's assault on the Constitution by providing personal information on their customers without judicial authorization."

When the whispers began that Majority Leader Harry Reid might still bring the bill to the floor, Dodd announced that he would filibuster, and has been joined by several other Senators. Thank goodness.

As I pointed out earlier, not only does the notion of amnesty for the telecoms have serious and troubling implications for the basic tenets of law and justice--and that if the telecoms are granted immunity, it's likely that we'll never be able to accurately determine whether and to what extent the Bush administration illegally spied on Americans--but it also ties directly back to the corrupting and overwhelming influence of powerful special interest money in politics.

Note how the Senator who forged this compromise received ten times more money from the telecoms this past year than in the five previous years combined.

Mr. Rockefeller received little in the way of contributions from AT&T or Verizon executives before this year, reporting $4,050 from 2002 through 2006. From last March to June, he collected a total of $42,850 from executives at the two companies.

Two simple takeaways, for me:

1. The telecoms should not receive retroactive immunity, especially when it's still unclear what they're receiving it for, i.e. whether what they did was legal, and what the specifics of the program were.

2. Whether or not his compliance was bought, the clear impression from that spike in campaign cash from the telecom industry to Rockefeller is that he's not an impartial legislator. Until we create a system of full public financing for all races, especially for Congress, we will continue to live with the suspicion--if not the reality--that powerful special interests are buying favors and currying excessive influence with our lawmakers. It is moments like this--when the apparent "best interests" of the people come into conflict with the wishes of major campaign donors--that highlight why having a political system awash in private money is such a bad idea for our democracy and why we must devote ourselves to changing it.

Law under the bus

The Senate has apparently reached a deal that threatens any attempt to uncover the details of the Bush administration's warrantless wiretapping of American citizens and whether those actions violated the law.

This is a sad and embarrassing trial and the Senate Intelligence Committee, led by chairman Sen. Jay Rockefeller, is essentially throwing the rule of law and the rigorous pursuit of justice under the bus--and it's not clear what is gained by doing so. It's very clear what is lost.

When the Bush administration's intelligence agencies began domestic spying operations, the major telecom companies had to comply to make it work. The White House, on the one hand, insists that it was legal; on the other hand, at the very same time, wants the telecom companies to receive retroactive immunity from any civil litigation--for allowing their customers' privacy to be violated by the federal government.

To recap, the White House is pushing two circles of logic here, and both are dangerous. One is that the White House says that its wiretapping program was legal, but still wants telecoms to be granted immunity. The other, which I covered earlier, is that the White House wants Congress to grant the telecoms immunity, but is preventing the telecoms from going before Congress to divulge what they did and what they'd deserve immunity from.

If we want a chance at justice with regard to the wiretapping program, letting the telecom companies retroactively off the hook may make that impossible, because then they'll never have to comply with any investigations.

It is unclear why the Senate would grant immunity to the telecoms while being kept in the dark about their activities in allowing domestic spying on American citizens.

Update: At least three of the top-10 contributors to Rockefeller are telecom industry giants. Sadly but not surprisingly, "American citizens who were unlawfully spied on" do not have a well-funded PAC, or maybe this would have turned out differently.

A frightening time for the rule of law

This is getting a bit scary. According to an AP story today, the White House is blocking telecom companies from cooperating with Congress to determine whether they permitted unlawful spying on American citizens by the intelligence agencies of the U.S. government.

Three telecommunications companies have declined to tell Congress whether they gave U.S. intelligence agencies access to Americans' phone and computer records without court orders, citing White House objections and national security.

Director of National Intelligence Mike McConnell "formally invoked the state secrets privilege to prevent AT&T from either confirming or denying" any details about intelligence programs, AT&T general counsel Wayne Watts wrote in a letter to the House Energy and Commerce Committee.

Qwest and Verizon also declined to answer, saying the federal government has prohibited them from providing information, discussing or referring to any classified intelligence activities.

Simultaneously, the Bush administration pushes Congress to grant telecom companies retroactive immunity from legal action for complying with the spying requests.

The Bush administration, urged by the telecommunication industry, is pushing hard for Congress to include immunity for past actions in any package to protect them from a series of civil suits.

Without the records, "to give immunity at this point in time would be a blind immunity," the House majority leader, Steny D. Hoyer, Democrat of Maryland, told reporters.

Essentially the White House insists that Congress give telecom companies retroactive immunity but is preventing Congress from finding out what those companies did, i.e. why they need to be immune. If this seems circular and dangerous to you, you're right on target.

They're invoking the "state secrets" privilege to attempt this circuitous avoidance of any oversight by Congress and any possibility of accountability. This is not how an executive branch is meant to act in a system of checks and balances in a country governed by law and justice.

The FISA/wiretapping bill that is coming up for debate may include retroactive immunity for the telecom companies, at least in the Senate version, according to the AP story. As Hoyer said above, it's clear that it should not.