Possible Deal on Telecom Immunity in Surveillance Bill

The imminent deal would cap weeks of negotiation among Republicans, the White House and Senate Intelligence Committee leaders. Talks continue, but progress has been made, said a spokeswoman for Intelligence Chairman John Rockefeller, D-W. Va. But Rockefeller hasn’t endorsed the proposal, outlined by ranking member Kit Bond of Missouri.

The FISA court would be directed to use a “preponderance of the evidence” yardstick in judging carriers’ justification for doing surveillance. Critics said that amounts to giving carriers immunity. Carriers could provide documents from the Bush administration showing they were ordered to conduct surveillance, enabling the FISA court to dismiss suits by privacy advocates, security analysts said. The court wouldn’t have to decide whether the surveillance itself was legal or whether phone companies had done enough to ensure that the administration legally ordered the surveillance. Before the Bush program took form, a carrier needed a FISA court order to do surveillance.

“The proposal amounts to immunity in different clothing,” said Greg Nojeim, director of the Project on Freedom Security and Technology at the Center for Democracy & Technology. “The FISA court is not called on to determine whether the surveillance complied with the law,” he said. “All it determines is whether the government said it complied with the law.” Several members of Congress have reviewed classified documents that the Bush administration says show the legal basis for the surveillance program that the telecom companies were provided.

The GOP proposal resembles an amendment offered months ago by Sen. Dianne Feinstein, D-Calif. That provision would have directed the court to decide whether companies acted in good faith in complying with administration requests. The Feinstein proposal failed because the intelligence community opposed it, Bond said.

“The Republicans’ purported immunity ‘compromise’ is a pure sham that’s even ‘worse’ than the original immunity passed by the Senate,” said attorney Kevin Bankston with the Electronic Frontier Foundation, which is handling lawsuits against carriers. “The stacked-deck immunity determination to be made by the court apparently still doesn’t include any meaningful review of the telecoms’ conduct or the legality of their cooperation… simply a review of whether the companies got a piece of paper saying that the President authorized the surveillance.”

The “deck would be stacked even more by the proposed transfer to the FISA court -- the most conservative and secretive court in the nation,” Bankston said. The court is made up of judges from circuit and district courts and includes more Republican appointees than Democrats. “Bottom line: It’s still immunity, and the Republicans have conceded nothing,” he said, referring to a previous bill the Senate passed that would give carriers immunity.

Bond said he hopes House Majority Leader Steny Hoyer, D- Md., will endorse the proposal. In previous talks, Hoyer had signaled support, Bond said. A statement that Hoyer released late Thursday said his office had just received the proposal. “We are reviewing it carefully and look forward to resolving remaining differences in the near future,” the statement said.

House Judiciary Committee Chairman John Conyers, D- Mich., also expressed hope for an agreement. It’s urgent to solidify a bill, which is why Republicans have offered have offered “significant” concessions, said House Republican Leader Roy Blunt of Missouri. Most Republicans backed the Senate Intelligence bill (S-2248) that House leaders blocked. “Unless Congress acts on this issue, our country will increasingly be at risk,” Blunt said.

The telecom immunity provision is a “sham,” the ACLU said Friday. It said the deal would enable companies to “get out of pending lawsuits by just showing the secret FISA court the illegal orders it received from the president.” Court review should look at whether companies “broke the law -- and not clear them just because the president asked for the illegal actions,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “This proposal is not about compromise,” she said. “It’s about giving the White House the green light to conduct domestic spying.”

“The noise level will increase over the coming weeks” on FISA negotiations, said Rep. Pete Hoekstra, R-Mich., adding that some Democrats also are frustrated at not finishing the FISA legislation. “We are running out of time.”