Immunity for Telecom Companies May Raise Concerns
By Ellen Nakashima and Shailagh Murray
Washington Post Staff Writers
Friday, October 19, 2007
The Senate intelligence committee yesterday produced a new bipartisan bill governing foreign intelligence surveillance conducted inside the United States, but objections by several Democratic lawmakers to some of its provisions raised questions about how quickly it might gain passage.
The bill, approved by the committee 13 to 2, would require a special surveillance court to approve the government's procedures for deciding who is to be the subject of warrantless surveillance. It also would impose more restrictions on the government than contained in an emergency six-month law passed in August, which the Bush administration wanted to make permanent.
It would further give some telecommunications companies immunity from about 40 pending lawsuits that charge them with violating Americans' privacy and constitutional rights by aiding a Bush administration's warrantless surveillance program instituted after September 2001. That provision is a key concession to the administration and companies, which lobbied heavily for the provision.
Senate intelligence Chairman John D. Rockefeller IV (D-W.Va.) and ranking Republican Christopher S. Bond (Mo.) said the bill allows for necessary intelligence collection while maintaining privacy protections for Americans.
An amendment by Sen. Ron Wyden (D-Ore.), who opposed the bill for its inclusion of telecom immunity, requires the government to obtain a warrant when targeting an American overseas for surveillance.
Last night, White House spokesman Tony Fratto said: "We have strong concerns about that amendment. We certainly could not accept it."
Bond called the provision "problematic" and said that if it is not modified, passage could be difficult.
Democrats on the Senate Judiciary Committee, which must also approve the bill, have said they will not consider giving the companies immunity unless they first gain access to key administration legal documents underpinning the warrantless wiretapping program. Sen. Christopher J. Dodd (D-Conn.), a long-shot presidential candidate, declared yesterday that he intends to put a hold on the bill specifically to block the immunity provision.
Still, aides to Senate Democratic leaders said they expect to be able to pass a bill by late November.
In the House, meanwhile, Democratic leaders said they are considering bringing their own version of the bill to a vote, without the immunity provision, as early as next week. The leaders pulled back from such a vote on Wednesday, because they could not prevail over GOP opponents on a parliamentary maneuver.
Much like the bill in the House, the Senate bill would allow the government to wiretap a series of foreign targets overseas without having to obtain court-approved warrants for each person under surveillance.
On the immunity issue, the Bush administration has argued that the companies that assisted the government by turning telephone and e-mail records in counterterrorism investigations should not be penalized for acting in good faith while the country was at risk of another terrorist attack. U.S. intelligence officials are keen to ensure that the companies will not be discouraged from cooperating in the future because of liabilities stemming from the lawsuits that could reach billions of dollars.
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.
View all comments that have been posted about this article.