Telecom giants remain in wiretapping crosshairs : Congress refuses to provide liability protection

Wireless and wireline carriers remain vulnerable to lawsuits over the National Security Agency’s anti-terrorist wiretapping program, with Congress so far refusing to consider a Bush administration legislative proposal that would give telecom carriers liability protection.
In its authorization bill report, the Senate Intelligence Committee said it cannot take up the administration’s draft legislation until the White House shows an increased willingness to be forthcoming about a warantless electronic surveillance initiative secretly begun after the Sept. 11, 2001, terrorist attacks.
“The committee remains committed to giving careful consideration to the issues involved in the administration’s legislative proposal to amend the Foreign Intelligence Surveillance Act and the proposal to provide liability protection to telecommunications companies who are alleged to have assisted the intelligence community in carrying out the president’s surveillance program,” the Senate committee report stated. “The committee’s review of the administration’s proposals and possible alternatives cannot be completed, however, until it receives key documents at the heart of the surveillance program: the president’s orders authorizing the warrantless surveillance and the Department of Justice opinions on the legality of the program. The administration’s refusal to satisfy these document requests span over a year and hampers the committee’s ability to move forward on the legislation before it.”
AT&T, Verizon target of lawsuits
Seventeen lawsuits alleging civil liberty violations against AT&T Inc., Verizon Communications Inc. and the United States have been consolidated in a federal court in San Francisco. The cases are overseen by U.S. District Judge Vaughn Walker. A hearing is set for Aug. 30 on the U.S. government’s motion to have the cases thrown out, while White House and Justice Department lawyers argue the litigation inherently would violate the government’s state secrets privilege.
Meantime, a challenge of a federal court ruling that held the Bush administration’s warrantless wiretap program as unconstitutional is ripe for a ruling by the 6th U.S. Circuit Court of Appeals. The court last October stayed a lower court’s decision pending appeal.
The Bush administration last week may have invited more criticism about being unresponsive to Congress. Attorney General Alberto Gonzales failed to respond to last Tuesday’s deadline to a request for documents related to the wiretap program from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Arlen Specter (R-Pa.).
“This administration has asserted that it established its program of warrantless wiretapping by the NSA because it deemed FISA’s requirements to be incompatible with the needs of the intelligence community in fighting terrorism,” Leahy and Specter stated in a May 22 letter. “You testified in January that the warrantless wiretapping program had been terminated and that henceforth surveillance would be conducted pursuant to authorization from the FISA court. To consider any changes to FISA, it is critical that this committee understand how the department and the FISA court have interpreted FISA and the perceived flaws that led the administration to operate a warrantless surveillance program outside of FISA’s provisions for over five years.”
No help from House
A companion intelligence authorization bill in the House also lacks telecom carrier liability protection and other components of the White House’s FISA modernization plan. The administration’s draft legislation would shield telecom carriers against legal actions going forward and retroactively to Sept. 11, 2001.
The House Intelligence Committee plans to begin hearings this month on FISA. A closed door hearing is scheduled for June 14, with an open hearing planned for June 21.
“One of the (Director of National Intelligence) proposals is to grant immunity to individual who and companies that facilitated electronic surveillance activities that were part of the NSA surveillance program disclosed by the president in December 2005. Before granting immunity for any activities, it will be important to review what those activities were, what was the legal basis for those activities, and what would be the impact of a grant of immunity,” said Silvestre Reyes (D-Texas), chairman of the House Permanent Select Committee on Intelligence.
FCC waiting response
The NSA domestic wiretap program also has managed to entangle Federal Communications Commission Chairman Kevin Martin in controversy, with House telecom subcommittee Chairman Edward Markey (D-Mass.) and others repeatedly calling for the agency to investigate whether telecom carriers violated consumer privacy law by sharing subscriber records with federal officials.
As it turns out, the chairman of the Republican-led FCC has fared no better than Democrats in getting feedback from Gonzales. The attorney general has yet to respond to Martin’s March 6 letter seeking written confirmation-and thus political cover-on the FCC’s policy of refusing to probe telecom carriers on national security grounds. At a hearing earlier this year, Martin promised to supply Markey with a copy of the Justice Department’s reply to his March 6 letter.
“We have received the letter and we will be responding,” said Dean Boyd, a Justice Department spokesman.