Senate Votes 69-28 for FISA Bill with Telecom Immunity
The Senate voted 69-28 Wednesday for a bill (HR-6304) to offer retroactive immunity to telecom carriers alleged to have aided the government in post-Sept. 11 surveillance. The bill goes to President Bush for an expected signature. Civil liberties groups condemned the bill, saying they look forward to reviving the debate next Congress. Senate Majority Leader Harry Reid, D-Nev., a foe of the bill, vowed to take up the issue when dealing with reauthorization of the Patriot Act.
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“It is an immeasurable tragedy” that the Senate passed a bill that “radically” expands presidential surveillance power and immunizes telecom companies, said Electronic Frontier Foundation Senior Staff Attorney Kevin Bankston. The foundation represents the plaintiffs in Hepting v. AT&T, a class action suit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were given to the National Security Agency. The group has been appointed co-coordinating counsel for all 47 outstanding lawsuits involving the government’s warrantless surveillance program.
The Senate vote caps more than a year of legislative wrangling. HR-6304 reflects a compromise between the House and Senate brokered by Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., who brokered an initial deal with the White House. Rockefeller pushed hard for White House approval to release classified documents to members of Congress to give them more information on which to base their votes. But Rockefeller only got limited release of documents, angering members on both sides of the aisle.
Senate Judiciary Committee leaders criticized the White House for holding the information close, and ranking member Arlen Specter of Pennsylvania spoke out strongly against the lack of information. Specter voted against the bill, as did other moderate Republicans. But Minority Leader Mitch McConnell of Kentucky said the bill would “improve the security of our country and make our homeland safer.”
“Finding a solution to this problem has not been easy,” Rockefeller said. But the bill restores the tradition of the Foreign Intelligence Surveillance Act as a “watchdog on government, while still providing our intelligence officials with the tools they must have to go after terrorists,” he said.
As expected, the Senate turned down amendments that would have eliminated or weakened the telecom immunity provisions. Several senators on both sides of the aisle said the companies deserved protection because they had acted in good faith, and their future cooperation is needed in terrorist surveillance programs. “Any company who assisted us following the attacks of 9/11 deserves a round of applause and a helping hand, not a slap in the face and a kick to the gut,” said Sen. Orrin Hatch, R-Utah.
Senate Judiciary Committee Chairman Patrick Leahy, D- Vt., who supported the amendments, said the bill “seems intended to result in the dismissal of ongoing cases against the telecommunications carriers.” Judges should at least review whether the program was legal. But as it stands, the bill has the effect of “ensuring that this administration is never called to answer for its actions, never held accountable in a court of law.”
“We are going to pursue legal means to reconsider this ill-advised law,” said Caroline Fredrickson, director of the ACLU’s Washington Legislative Office. Reid’s promise to review the law next year is a promising development, she said, adding that it will “take some time before lawsuits against telecom carriers are dismissed.” The bill may provide relief to telecom carriers, but it will create “enormous uncertainty for companies in the future,” said Gregory Nojeim, director of the Center for Democracy & Technology’s Technology Project. “What happens when a future President asks them to assist with unlawful surveillance? The answer is, no one knows.”
CDT praised one provision in the bill that requires an inspector generals’ audit of the post-Sept. 11 program. The audits, which must be supplied to Congress, are to be done by the Department of Justice, the office of the Director of National Intelligence and other intelligence agencies, Rockefeller said.
But the ACLU calls the bill a failure because it essentially grants absolute retroactive immunity to telecommunication companies, the group said. “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, director of the ACLU National Security Project. “The bill… plainly violates the Fourth Amendment.”