November 16, 2007

Deferring Immunity

The Senate Judiciary Committee decided to punt on the question of telecom immunity for the moment. By a 10-9 vote, they stripped the proposed changes to FISA legislation of any reference to protecting communications companies from expensive lawsuits for cooperating with the NSA on surveillance. The topic will go to the full Senate for debate while members of both parties look for a compromise solution that will keep the White House from vetoing the legislation:

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.

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.

The proposed legislation in the House has more problems than just a missing immunity package. Rep. Peter Hoekstra (R-MI) blasted the passage of the FISA bill yesterday, saying that the bill would "not help our troops or streamline intelligence collection to help prevent the next attack.” He noted that the bill would require NSA for the first time to limit its foreign (and therefore warrantless) surveillance to only those situations where "certainty" exists that no US persons will be party to the communications, a new and potentially crippling standard. Previously, NSA could proceed until it became apparent that a US person was participating in the communication. This would mean that the NSA would have to wait on warrants for potentially all of its investigations.

Nor is that the only oddity in the House approach. The RESTORE Act would for the first time allow intel agencies to spy on illegal aliens in the US without warrant. FISA's definition of a US person was designed specifically to block this kind of effort, and Hoekstra warned immigration hardliners that this would not be a good idea for American civil liberties. “We are extending greater rights to terrorists overseas, but reducing them for people who are actually on U.S. soil,” Hoekstra said. “Why should people in the U.S have fewer rights than those we have actually identified as terrorists?" It's a very good question. Why should NSA have its overseas efforts hamstrung while opening the door wide for domestic spying? The entire approach is backwards, and extraordinarily strange for those who claimed that the NSA's terrorist-surveillance program (TSP) represented a trashing of the Constitution.

This brings us back to the issue of telecom immunity. The telecoms acted in what they perceived as the interest of the nation in cooperating with the NSA on the TSP. Allowing massive lawsuits against the telecoms will only punish them for caring about national security and assisting in the war on terror -- and for doing far less than what the RESTORE Act proposes.

The proposals for compromise on immunity look stranger than the RESTORE Act. The most popular will have the federal government replacing the telecoms in the lawsuits, so that taxpayers have to foot the bills for the damages. All that does is punish us for what our government was supposed to be doing even before 9/11 to protect us from attack -- and make an entire class of trial attorneys wealthy. If the telecoms don't have to pay damages, then why allow the lawsuits at all?

President Bush has warned of a veto on any bill that hamstrings the NSA or fails to include telecom immunity. I'd say we have a high likelihood of a veto on both counts, considering the present state of the debate in Congress.


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» More Telecom Immunity Nonsense from The Crossed Pond
This time, from the often-reason Ed Morrissey. This brings us back to the issue of telecom immunity. The telecoms acted in what they perceived as the interest of the nation in cooperating with the NSA on the TSP. Allowing massive lawsuits against the... [Read More]