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Lawyers prepping litigation against telecom immunity
Nick Juliano
Published: Tuesday July 1, 2008

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Would argue immunity an 'unconstitutional' violation of separation of powers

Fear not, foes of oversight-free domestic surveillance. Even if Senate Democrats follow their House counterparts and endorse immunity for telecom companies, the battle to hold those companies accountable will not end there.

While the prospects of reining in President Bush's expanded spy powers seem to be dwindling in Congress, lawyers and activists are already gearing up for court challenges if lawmakers pass an unacceptable bill. Critics say pending civil lawsuits that the administration and Congress are trying to get rid of are the only way to shed any light on the likely illegal spying authorized by President Bush and facilitated by the nation's telecommunications firms.

The Senate next week is expected to vote on an update to the Foreign Intelligence Surveillance Act that would effectively grant retroactive immunity to phone and Internet providers facing dozens of class-action civil lawsuits. Activists have not given up on a fight to strip the immunity provision from the bill, but their chances of success seem dim.

Lawyers for the Electronic Frontier Foundation and American Civil Liberties Union, two groups that have been leading the charge against dismissing the lawsuits, are working on possible legal challenges for the FISA bill that is expected to pass soon. That being said, no one is ready to throw in the towel on the continuing FISA fight happening in the Senate.

"Assuming that the immunity does pass, which right now we are not assuming, we are certainly preparing for litigation against the application of immunity in our case," Kevin Bankston, a senior attorney for EFF told RAW STORY.

EFF is representing customers in class-action lawsuits alleging that Verizon and AT&T violated customers' privacy when they participated in the National Security Agency's warrantless wiretapping program.

The FISA bill passed by the House last month, which the Senate is expected to vote on next week, would dismiss those lawsuits if Attorney General Michael Mukasey assures the court that the companies were asked in writing to cooperate. No one disputes that such requests were made, rather plaintiffs in the suit argue that such requests were illegal because the administration did not secure warrants before spying on Americans, as was required by FISA, which first passed in 1978 in response to Nixon-era abuses of the Intelligence Community.

EFF would argue that the immunity provision in the FISA update is itself an unconstitutional violation of the separation of powers doctrine, Bankston said.

While the precise sequence of events in unclear, Bankston said the challenges would take place in the Northern District of California Court, where the telecom lawsuits themselves are being litigated. He said he's pleased that at least the immunity question is not being decided by the secret FISA court, as was proposed in an earlier bill.

The ACLU is keeping its options open but has not decided how or if it will proceed with court challenges to an eventual FISA agreement, a spokesman says.

All of these discussions, of course, are contingency plans. The Senate still has not passed a FISA update, and the Bush administration and its allies in Congress have been thwarted before when they have tried to grant retroactive immunity to the telecoms.

"We haven't admitted defeat yet," Bankston said in a phone interview last week. He acknowledged the effort would be an "uphill battle" before recalling some words of wisdom from Han Solo: "Never tell me the odds."

Immunity opponents like Sens. Russ Feingold (D-WI) and Chris Dodd (D-CT) have succeeded in delaying a FISA vote until after this week's Independence Day recess, and they have introduced an amendment to strip immunity from FISA. Feingold initially sounded pessimistic about its chances, but he praised the "outpouring of support" from immunity opponents in a video message posted Monday.

"I teased some of my colleagues, I said we can celebrate the Constitution on July 4th then maybe when you come back you'll decide not to tear it up," he said.

Along with Feingold's and Dodd's amendment is a proposal from Sen. Jeff Bingaman (D-NM) that would delay a final decision on the question of immunity until a report on the warrantless wiretapping program from the Inspectors General of the Justice Department and other agencies. Sen. Arlen Specter (R-PA) also has offered an amendment that would let the court decide not to grant immunity if it decides the NSA's warrantless spying was unconstitutional.

The Bingaman amendment, which EFF and the ACLU support, would stay the pending lawsuits until 90 days after the IG reports, thereby preventing Congress from not knowing what it would be immunizing.

Bankston called it an "eminently sensible and fair minded" compromise.

Senate procedural rules worked out before the vote would allow the Feingold/Dodd amendment that would strip immunity entirely to be adopted with a simple majority vote*, while the Bingaman and Specter proposals would need 60 votes. None of the amendments seem likely to pass.

When Dodd tried to strip immunity from an earlier FISA bill, only 31 senators supported him. The earlier FISA bill did not require the IG reports, so there's no parallel for the Bingaman/Specter proposal, although the 60-vote requirement means it will have a tough time passing.

While senators are home for recess this week, activists are applying pressure within their states to try to sway some to support the anti-immunity amendments.

The Senate returns next week and is scheduled to resume consideration of FISA July 8. The ACLU is working hard to build support for the proposed amendments, recognizing that even if they fail, demonstrated opposition to immunity could help pressure the next administration.

"A strong 'no' vote helps us keep the pressure on Obama and McCain to investigate at the very least," Caroline Fredrickson, an ACLU lobbyist, said in an e-mail. "And perhaps take more serious action."

*Clarification: An earlier version of this article said the Feingold/Dodd amendment would need 51 votes to pass. It would only need a majority of senators casting a vote; e.g., if 97 senators are present, it would pass with 49 votes