Senate Panel Approves New Surveillance Bill

Several experts in national security law also said the administration wants to shut off the lawsuits to forestall a potential court ruling that the warrantless surveillance program was illegal. Government officials have invoked the state secrets privilege in court proceedings, saying that the entire topic is so secret that the lawsuits would undermine national security.

Current law gives the carriers immunity from legal liability if they can show they received a court order or certification from the attorney general that statutory requirements authorizing the handover of telephone and e-mail records were met. "So if it was that simple, if they had that certification, I would not think we would be where we are today, talking about immunity," said Suzanne E. Spaulding, a former Senate intelligence committee general counsel and CIA assistant general counsel who is now a national security consultant.

The intense lobbying for immunity suggests that the carriers did not have such certification, she said.

Wayne Watts, AT&T senior executive vice president and general counsel, said the government's invocation of state secrets prevented the carriers from defending themselves with existing immunities, because they would have to make factual showings -- confirming or denying their involvement in the surveillance effort -- that the government argues are state secrets.

The bill would allow a court to dismiss the lawsuits if the attorney general certifies to the court one of two things: the carrier did not aid the government, or the carrier's assistance was related to an intelligence activity authorized by the president between Sept. 11, 2001, and Jan. 17, 2007, and it was designed to prevent or detect a terrorist attack.

The latter certification must say that the authorization was in written form from the attorney general or an intelligence agency head, indicating that the activity was authorized by the president and determined to be lawful. This certification can be presented in secret, with the court never disclosing which of the two cases applied.

The measure would not affect a handful of lawsuits separately filed against the government alleging that the warrantless surveillance program was unlawful.

Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) complained yesterday that the Senate intelligence committee was prepared to "cave" to administration demands on telecom immunity. He said the reason the administration wants "to immunize past illegal conduct is because they know that it was illegal conduct."

Staff writer Dan Eggen contributed to this report.