Eavesdropping Bill Grants Telecoms Immunity

Image has not been found. URL: /wp-content/uploads/2008/09/bush-profile.jpgPresident George W. Bush (WDCPix)

Last week in Washington, speaking to a crowd of conservatives representing his dwindling pool of support, President George W. Bush pitched his best case for protecting freedom by taking it away.

“My most important job is to protect the American people,” Bush told the annual Conservative Political Action Conference on Feb. 8. “In order to do that job, we need to know who the terrorists are talking to; we need to know what they’re saying; we need to know what they’re planning.”

Illustration by: Matt Mahurin

In short, Bush urged, we need Congress to renew the federal eavesdropping law which, for several years following 9-11, the National Security Agency used to conduct electronic surveillance of U.S. residents without judicial oversight. That renewal, Bush has stipulated, must grant retroactive legal immunity to the telecommunications companies that cooperated with the administration under its warrantless wiretapping program.

Anything less, he warned, is veto bait.

“Our ability to monitor the communications of terrorists overseas has helped us gain crucial elements on terrorist cells,” said Bush, “and helped keep our country safe.”

Those unsubtle threats — that the nation’s safety hinges on the privilege of the White House to intercept international phone calls and e-mails without court approval; and that the telecom companies must be forgiven past sins related to the process — have been central to a months-long congressional debate over how to renew the administration’s surveillance authority, which expires Feb. 16.

It was not only conservatives who heeded the president’s call. On Tuesday, in a bow to the White House and a blow to civil libertarians, the Senate easily approved a new eavesdropping law that expands the NSA’s spy powers and includes the immunity that Bush called for. The final tally was 68 to 29.

Earlier in the day, the chamber voted 67 to 31 to defeat an amendment that would have allowed roughly 40 civil lawsuits against the telecommunications industry to proceed. Eighteen Democrats and Independent Sen. Joe Lieberman (Conn.) joined Republicans to kill the proposal. The suits contend that the companies had no legal right to share private call information with the government without a secret court directing them to do so.

In the wake of 9-11, the NSA began circumventing that secret court, which was created under the 1978 Foreign Intelligence Surveillance Act (FISA). The intelligence agency intercepted any communications between U.S. residents and folks overseas when at least one party was suspected of ties to a terrorist group. When the program was revealed by The New York Times in 2005, the White House said it would return the court’s oversight to the process. Now it wants the legal authority to circumvent the secret court.

Bush’s push for immunity — and now the Senate’s vote of approval — has set off a firestorm of criticism from privacy groups and many Democrats, who have accused the White House of trampling the Constitution in its fervor to gather information. Granting immunity to the companies that cooperated in that effort, they insist, places industry interests above the rights of citizens.

“Retroactive immunity is not wise,” Sen. Carl Levin (D-Mich.) said on the Senate floor Tuesday, “because it precludes any judicial review of that conduct. I am deeply concerned that if we act here to immunize private parties who participated in a program that appears to have been clearly illegal, we may encourage others to engage in such illegal activities in the future.”

Kevin Bankston, an attorney with the Electronic Frontier Foundation, a civil liberties group, also blasted the Senate for “caving” on the issue. “Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” Bankston said in a statement. “Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying.”

The civil liberties advocates may have better luck selling their message in the House. Last Friday, as Senate Democratic leaders were conceding the inevitability of losing the immunity debate, several influential House Democrats sent a stern message to their colleagues urging resistance.

Immunity, said Reps. John Dingle (D-Mich.), Bart Stupak (D-Mich.) and Ed Markey (D-Mass.), “deserves a separate and more deliberate examination by Congress. No special urgency attaches to the question of immunity other than the present administration’s general eagerness to limit tort liability and its desire to avoid scrutiny of its own actions, by either the courts or the Congress.”

Last November, the House passed its own surveillance bill, which excludes telecom immunity. Furthermore, advocates say, the House legislation proposes greater congressional and judicial oversight over the eavesdropping program. “The Senate seemed determined to pass the least constitutional FISA bill possible,” Caroline Frederickson, Washington legislative director of the American Civil Liberties Union, said in a statement. The ACLU, which opposes both bills, sued the administration over the constitutionality of the wiretapping program. That suit was dismissed last year after an appellate court ruled that the plaintiffs lacked legal standing because they could not prove they had been targets of surveillance.

Foreseeing difficult conference negotiations, Democratic leaders in both chambers have floated the idea of another temporary FISA extension — something Bush has said he will reject.

With time growing short, a congressional showdown is certain. Rep. Silvestre Reyes (D-Tex.), chairman of the House Select Intelligence Committee, issued a statement following Tuesday’s Senate vote indicating that he intends to push the House version of the bill.

Furthermore, Reyes said, committee members are still digesting confidential documents on immunity recently provided by the White House in an effort to convince skeptical Democrats to support the president’s proposal. “These documents raise important questions,” Reyes said, “and it will take some time to gather enough information to make a determination on the issue of retroactive immunity.”