House passes telecom immunity bill: Senate may vote next week

Parent companies of the nation’s largest mobile-phone operators could escape liability from dozens of lawsuits under a bill passed by the House that updates the Foreign Intelligence Surveillance Act.
The measure, which could be voted on by the Senate next week, would require federal courts to dismiss surveillance lawsuits against Verizon Communications Inc., AT&T Inc. and Sprint Nextel Corp. and others if the U.S. attorney general certifies their cooperation – between Sept. 11, 2001, and Jan. 17, 2007 – was based on written assurances that their activities were authorized by the president and determined to be lawful.
The Bush administration secretly put the warrantless wiretap program in play via the National Security Agency shortly after the 9/11 terrorist attacks, but its existence surfaced publicly in 2005. Class-action lawsuits against top telecom companies and congressional hearings subsequently followed.
“Critics and supporters appear to believe the mechanism will generally allow the telcos to be shielded from liability for the warrantless surveillance that has been alleged, though lawsuits against the government could continue,” said analysts at Stifel, Nicolaus &Co. Inc. “The telcos also would receive further guidance for determining whether future administration surveillance requests are legal.”
Sen. Christopher Bond (R-Mo.), vice chairman of the Senate Intelligence Committee and one of the congressional architects of the compromise with the Bush administration on the FISA bill, said the legislation appropriately balances national security and privacy.
“With today’s strong bipartisan vote in the House, we are one step closer to ensuring Americans’ civil liberties are protected while giving the intelligence community the legal authority they need to listen in on foreign terrorists abroad,” said Bond.
However, the House vote attracted harsh criticism.
“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said Kevin Bankston, senior staff attorney at the Electronic Frontier Foundation. “Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president’s wiretapping program and to determine whether or not the law was broken.”
House Commerce Committee Chairman John Dingell (D-Mich.) and Rep. Rush Holt (D-N.J.) agreed.
“The immunity provision contained in this bill purporting to allow for judicial review to determine whether immunity is appropriate is a sham,” said Dingell. “As drafted, courts will have no real discretion and will be forced to grant immunity so long as the government claims its actions were legal. However, the court is under no obligation to investigate whether the government’s claims are true. Anyone following the headlines recently, who has read about the recent Supreme Court decision overturning the administration’s argument that it has the authority to detain people indefinitely in Guantanamo Bay, or about the hearings held by Senator Carl Levin and the Senate Armed Services Committee uncovering evidence that top civilian leadership at the Department of Defense authored memos arguing it was legal for the military to torture detainees, should be extremely wary of trusting President Bush to decide whether or not it is legal to spy on Americans.”
Holt stated: “When the debate over modernizing the Foreign Intelligence Surveillance Act began more than a year ago, I had hoped that we would craft a bill that would allow us to protect Americans in every way – from our foreign enemies and from an overly-intrusive federal government. We failed in that task last August when we passed the so-called ‘Protect America Act,’ but we seemed to recover the proper balance in November 2007 and again in March 2008 when this House passed two very good FISA reform bills.”