House to telecoms: Fight your own lawsuits
Nick Juliano
Published: Friday November 16, 2007
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Senate panel joins suit, sends immunity-free bill to floor for vote

Democrats scored a pair of victories Thursday in the battle to hold accountable telecommunications companies that allegedly assisted the Bush administration in its efforts to warrantlessly wiretap Americans.

The House late Thursday passed an update to a foreign surveillance law that did not include a Bush-requested provision granting legal immunity to the powerful telecoms. A Senate committee scored a similar win against immunity when it unexpectedly sent to the full Senate a Foreign Intelligence Surveillance Act revision that did not include immunity.

Democrats, civil libertarians and liberal bloggers celebrated a rare and unexpected two-front victory, but they know that Bush and congressional Republicans have not given up in their efforts to intervene in about 40 lawsuits pending against phone and Internet providers such as AT&T and Verizon.

On a 227-189 vote, the House passed its FISA update, known as the RESTORE Act, which reinstates judicial oversight that was eliminated from a temporary update passed in August and pointedly does not include language granting immunity to telecommunications companies.

Thursday also saw the Senate Judiciary Committee consider companion legislation. Although an amendment offered by Sen. Russ Feingold (D-WI) to strip an immunity provision from that bill failed on a 12-7 vote (with three Democrats voting with Republicans), the panel's chairman Sen. Patrick Leahy (D-VT) avoided that setback by moving to discharge from the committee only the part of the bill that did not include immunity. That vote passed along party lines.

To be sure, the fight over immunity is far from over, as activists expect Senate Republicans to try to re-insert an immunity provision during the Senate floor debate over the FISA update.

"I'm heartened to see that the Senate Judiciary Committee has affirmed, as I and thousands of other people around the country have, that those telecommunications companies that participated with the Bush Administration in trampling millions of Americans' civil liberties should not receive retroactive immunity for their participation," said Sen. Chris Dodd (D-CT), who has vowed to filibuster any bill containing immunity, in a prepared statement. "This is a victory for the rule of law and everyone who cares about preserving our Constitution."

Leahy warned that although the immunity provision is not in the bill expected to be considered by the full Senate, it is an issue that will be decided by the chamber as a whole.

"While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable," Leahy said in a statement. "Passing a law to whitewash the Administrationís undermining of another law would be a disservice to the American people and to the rule of law."

Feingold called the Judiciary Committee bill a "distinct improvement" over a similar proposal approved last month by the Intelligence Committee that included immunity. Although he said the bill is not yet perfect.

ďThere is still much to be done to fix this bill. In addition, the issue of retroactive immunity for companies that allegedly participated in the Presidentís warrantless wiretapping program will be fought out on the floor," Feingold said in a statement. "I will continue to strongly oppose retroactive immunity when the full Senate considers this legislation."

Activists who had fought to exclude the immunity provision last night cheered the dual victories, but none was ready to rest yet.

"Itís a huge victory," wrote Jane Hamsher at FireDogLake, "but just the beginning of the fight."