Senate's FISA debate to focus on immunity for telecoms

SBy Chris Strohm, CongressDaily -- Senators will battle today over a bill giving telecommunications companies legal protections for helping the Bush administration conduct warrantless electronic surveillance on U.S. citizens, with opponents of the measure emboldened by a recent federal court ruling they say favors their position.

Comment on this article in The Forum.The companies face about 40 lawsuits for participating in the National Security Agency's warrantless electronic surveillance program, all of which have been consolidated before Vaughn Walker, chief judge of the Northern District of California.

Critics argued Monday that the Senate should not pre-empt the lawsuits in light of a ruling by Walker on Wednesday. Walker held that the government could not prevent plaintiffs from presenting unclassified evidence to support their claims against the firms.

Senate Judiciary ranking member Arlen Specter called Walker's ruling "a major development," adding that it would be "very unseemly" for Congress to effectively kill the lawsuits by giving the companies retroactive immunity.

Specter said the ruling gives plaintiffs a "path forward" to establish standing before the court.

"We don't know what it is that we're asking to grant retroactive immunity for," he said.

"I submit that we have really come to a very serious situation," Specter added. "In the future, historians are going to look back on the period from 9/11 to the present time as the greatest expansion of executive power in American history."

The Senate plans to debate three amendments today to the revision to the Foreign Intelligence Surveillance Act. The administration-backed bill was approved by the House last month.

All three amendments target a provision in the bill that would grant the telecoms retroactive legal immunity if they can show a federal district court they received written directives that warrantless wiretaps were authorized by President Bush and determined to be lawful.

Critics say the companies received such directives, essentially ensuring that the lawsuits would be dismissed if the bill becomes law.

Votes on the amendments and on final passage of the bill will be postponed until Wednesday to allow some senators to attend the funeral of former Sen. Jesse Helms, R-N.C.

Walker's ruling emboldened groups such as the Electronic Frontier Foundation, which has filed one of the lawsuits and is an outspoken critic of the bill's immunity provision.

"Certainly we don't think immunity is justified at all," said Kevin Bankston, a senior staff attorney with the group.

Bankston said the district court should be able to determine whether the directives comply with federal wiretap laws.

Bankston asserted that directives violated the law at least one time period because a determination that the program was lawful was made by Alberto Gonzales when he was White House counsel. By law, Gonzales was not authorized to make that determination.

Supporters of the bill say that even if the measure passes, lawsuits can be brought against the government, rather than the telecom firms.

"I think it is ridiculous to claim that suits against the government are an adequate replacement for suits against the [telecoms]," Bankston said.

One of the amendments to be debated would delay giving the companies legal protections until Congress could review the findings of a comprehensive inspectors general report on the warrantless surveillance program.

The amendment, offered by Sen. Jeff Bingaman, D-N.M., Specter and Sen. Robert Casey Jr., D-Pa., would need 60 votes to pass.

Under the bill, a panel of inspectors general would have one year to complete the investigation.

On Monday, Attorney General Mukasey and Director of National Intelligence Mike McConnell sent Senate leaders a letter saying they would recommend Bush veto the bill if the amendment becomes part of the bill.

Another amendment, offered by Sens. Russell Feingold, D-Wis., and Christopher Dodd, D-Conn., would strip the immunity provision from the bill. It would need 50 votes to pass; a similar amendment in the Senate garnered 37 votes in February.

Specter is expected to offer an amendment that would require the federal district court to determine if the warrantless electronic surveillance program was constitutional before granting immunity to the companies. It would need 60 votes to pass.

Mukasey and McConnell already have warned that if either amendment becomes part of the bill, they will recommend a veto.