Roadblock for Telecom Immunity
Senate Judiciary Leaders Resist Leniency for Surveillance

By Ellen Nakashima
Washington Post Staff Writer
Thursday, November 1, 2007

In a blow to the Bush administration, the Senate Judiciary Committee's top Democrat and Republican expressed reluctance yesterday to granting blanket immunity to telecommunications carriers sued for assisting the government's warrantless surveillance program.

Committee Chairman Patrick J. Leahy (D-Vt.) and the ranking Republican, Sen. Arlen Specter (Pa.), had said that before even considering such a proposal, they would need to see the legal documents underpinning the program, which began after Sept. 11, 2001, and were put under court oversight in January.

On Tuesday, the committee was given access to some of the documents. But Leahy said yesterday that he had a "grave concern" about blanket immunity, saying that "it seems to grant . . . amnesty for telecommunications carriers for warrantless surveillance activities."

The activities seem to be "in violation of the privacy rights of Americans" and of federal domestic surveillance law, he said, noting that he is still "carefully considering" what is in the documents.

The immunity provision sought by the White House would wipe out about 40 lawsuits that accuse AT&T, Verizon Communications and Sprint Nextel of invading Americans' privacy and constitutional rights by assisting the government in domestic surveillance without a warrant.

The Senate intelligence committee approved the provision two weeks ago as part of a larger bill to amend the Foreign Intelligence Surveillance Act, which governs some aspects of domestic surveillance. The Judiciary Committee will take up the bill next.

Immunity "is designed to shield this administration from accountability for conducting surveillance outside the law," Leahy said. Dismissing the lawsuits would eliminate "perhaps the only avenue" for "an honest assessment" of the legality of the warrantless surveillance program, he said.

Specter agreed that the "courts ought not to be closed" to such lawsuits. "If, at this late date, the Congress bails out whatever was done before -- and we can't even discuss what has been done -- that is just an open invitation for this kind of conduct in the future," he said.

Specter added that he thinks the carriers "have a strong, equitable case" but that his inclination is toward indemnification, where the government would assume any financial penalties.

Sen. Dianne Feinstein (D-Calif.) said the immunity provision was one of "two big issues" she had with the bill, and she suggested that limiting damages might be an alternative. She noted that the lawsuits could cost carriers as much as $30 billion in penalties -- a problem if taxpayers were to pick up the tab.

Assistant Attorney General Kenneth L. Wainstein told the committee that immunity was a question of "fairness" for the carriers. He also said that proceeding with the cases risks the divulgence of classified information. The government has invoked a claim of state secrets to stop the litigation. "If we don't prevail with state secrets," Wainstein said, "then there's no guarantee that that information is not going to get out. In fact, even just the filing of lawsuits and the allegations made can actually end up . . . compromising sensitive sources and methods."

"Oh, really?" Specter replied. "Allegations in a lawsuit from people who are plaintiffs who don't have any inside information?"

"Yes," Wainstein said.

Staff researcher Richard Drezen contributed to this report.

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