Senate Dems Cave on Telecom Immunity

Sen. Christopher Dodd (D-Conn.) opposed immunity for telecom companies that assisted in the Bush administration

In what might be the final major legislative victory for President George W. Bush, the Senate on Wednesday passed a controversial modernization of the government’s powers to spy on certain Americans, including legal immunity for the phone companies alleged to have broken the law under the program.

The tally was 69 to 28, with all opposition coming from Democrats. Sen. Barack Obama (Ill.), the likely Democratic presidential nominee, voted in favor of the bill, as he said he would.

The passage wraps up months of heated debate over how much leeway the White House should have to eavesdrop on U.S. residents in a post-9/11 world. The Bush administration has argued that some expansion of surveillance powers is necessary to protect the country from terrorist threats. But civil libertarians and some Democrats say the bill goes too far to steal privacy rights guaranteed by the Constitution.

Illustration by: Matt Mahurin

Within the Bush administration, whose tenure has been defined by the attacks of Sept. 11, there has rarely been a question about how the scales should tip. Given the choice between securing the nation and protecting civil rights, the White House has systemically favored the former — an attitude demonstrated by everything from the treatment of terrorist suspects to the building of the immigration fence on the Mexican border. In many ways, the now-passed surveillance bill is another triumph of this legislative legacy.

It’s a posture that’s angered many administration critics, who argue that the White House need not break laws to protect the country. “This notion — that it is the rule of law that keeps us safe — should not be controversial,” said Sen. Christopher Dodd (D-Conn.).

The House passed the bill last month, and Bush is expected to sign it into law next week.

The wiretapping debate took off in late 2005, when The New York Times revealed that the White House had adopted a program to eavesdrop on foreign-to-domestic communications without judicial oversight when the foreign party was suspected of terrorist ties. The new bill would prevent the administration from intercepting such communications without approval from a special court. The legislation also requires court oversight for targeting Americans working or traveling abroad.

Supporters say the bill strikes a sound compromise between privacy rights and national security concerns. “I am convinced that the bill takes the right approach,” Sen. Jay Rockefeller (D-W.Va.), head of the Senate Intelligence Committee and a leading proponent of the bill, said Wednesday.

But critics contend that some court oversight provisions remain too broad, allowing the government to target swaths of people using general — not individual — warrants. “That could mean millions upon millions of communications between innocent Americans and their friends, families or business associates overseas could legally be collected,” Sen. Russ Feingold (D-Wis.) said Wednesday.

But the most controversial provision was one freeing the telecom industry of any liability for its previous cooperation in the warrantless wiretapping program. The provision would scrap roughly 40 lawsuits currently pending against the participating phone companies. Critics say that condition — a requirement of the Bush administration to avoid a veto — lets the companies off the hook before learning what they’ve done.

“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” Caroline Fredrickson, Washington director of the American Civil Liberties Union, said in a statement. “This bill — soon to be law — is a constitutional nightmare.”

Senate opponents of the immunity provision offered three separate amendments aiming to hold the industry participants to some judicial scrutiny. The first, offered by Dodd, would have removed the immunity provision altogether, allowing the lawsuits to proceed. “This is a matter for the courts to decide, not for the legislative branch,” Dodd said. “That’s the issue here: The rule of law, or the rule of men?” The proposal fell 32 to 66.

A second amendment, sponsored by Sen. Arlen Specter (R-Pa.), who has been strongly critical of the White House program, would have required the courts to rule on the constitutionality of the warrantless wiretapping program before granting immunity to the telecoms. Specter, the top-ranking Republican on the Senate Judiciary Committee, said it makes little sense for lawmakers to grant immunity without knowing the crime. “We frequently vote on matters that we don’t know about,” Specter said, “but not so blatant[ly].”

Rockefeller countered that the telecom companies had no responsibility to assess the constitutionality of requests for information from the government. Sen. Christopher Bond (Mo.), the top-ranked Republican on the Intelligence Committee, added: “They are taking risks by being good patriotic Americans.” The amendment failed 37 to 61.

A final amendment, sponsored by Sen. Jeff Bingaman (D-N.M.), would have postponed the immunity provision until several executive branch agencies had conducted an investigation into the warrantless wiretapping program and reported the findings to Congress. The current bill contains the investigation, but the report will arrive long after the immunity is granted. “That’s the wrong sequence,” Bingaman said.

In response, Bond wondered why lawmakers hoping to install more congressional oversight over the White House would place so much value on investigations performed by inspectors general operating under the executive branch. “The simple fact of the matter is that the IGs have already reviewed this program,” he said. The amendment died 42 to 56.

The debate became campaign trail fodder after Obama announced his support for the bill last month, despite his opposition to the immunity provision. His vote of approval has angered many Democrats, who hoped the Illinois senator would reverse his decision following an outcry from liberal voters. Obama’s former Democratic rival, Sen. Hillary Rodham Clinton (N.Y.), voted against the measure.

Sen. John McCain (R-Ariz.), the GOP presidential hopeful, did not vote Wednesday, but has voiced strong support for the bill.

Civil liberties groups, led by the ACLU, which spearheaded many of the pending suits against the telecom companies, are vowing another court challenge.

“This fight is not over,” Jameel Jaffer, director of the ACLU National Security Project, said in a statement. “We intend to challenge this bill as soon as President Bush signs it into law.”