Rocky road ahead for Senate's gift of telecom immunity
Nick Juliano
Published: Friday October 19, 2007
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Update: Feingold vows to use 'every tool at my disposal' to block telecom immunity, protect privacy; Dodd says will filibuster

A Senate committee advanced a bipartisan piece of legislation that would grant telecommunications companies legal immunity for their cooperation with President Bush's warrantless wiretapping program, but lawmakers are expecting at least another month of battle over the scope of the administration's surveillance authority.

The Senate Intelligence Committee spent nearly five hours Thursday hammering out the parameters of their proposal to update the Foreign Intelligence Surveillance Act. Despite talk of a bipartisan compromise, critics were still furious about some parts of the bill, and passage in its current form is hardly a guarantee.

"The bill still cedes far too much power to the executive branch, which has time and again shown it will only abuse it," Sen. Russ Feingold (D-WI) said in a statement. "If the bill that ultimately reaches the Senate floor includes immunity and does not adequately protect the privacy of Americans, I will fight it vigorously with every tool at my disposal.

Feingold, who serves on the Intelligence and Judiciary committees, has been a vigorous opponent of attempts to vastly expand presidential power since Sept. 11. He and Sen. Ron Wyden (D-OR) succeeded Thursday in amending the Intelligence committee's bill to explicitly require warrants for surveillance of Americans residing overseas.

Although the bill emerged from the committee on a 13-2 vote, the Feingold-Wyden amendment is seen as unacceptable to the Bush administration, and one of the Senate's Democratic presidential candidates has vowed to prevent a floor vote on the bill, which provides immunity for telephone and Internet companies that helped spy on Americans.

"I have decided to place a 'hold' on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President's assault on the Constitution by illegally providing personal information on their customers without judicial authorization," Sen. Chris Dodd (D-CT) said in a statement released by his presidential campaign.

Dodd, who is not a member of the intelligence panel, released the statement before final details of the bill were released Thursday night. His campaign and Senate office did not return RAW STORY's calls seeking comment Friday morning. Later Friday, Dodd released a YouTube video saying he would filibuster the FISA update if necessary. FireDogLake declared, "This is awesome. Go Dodd."

The Senate panel agreed to telecom immunity after receiving from the administration long-requested documents outlining the legal justifications of Bush's post-9/11 warrantless surveillance scheme. Their bill is meant to provide narrow grants of immunity to companies that facilitated the then-illegal Terrorist Surveillance Program.

Interestingly, approval of the measure coincides with a massive increase in donations from the country's top telecom companies to Intelligence Chairman Jay Rockefeller (D-WV), as noted by Wired's Ryan Singel

The bill requires that the Attorney General certify to the court that companies alleged to have assisted in the program were following a written request or directive from the Attorney General or an intelligence agency head or deputy head as part of the TSP.

Notably, the bill provides no retroactive immunity for government officials, nor does it cover telecommunications' companies actions before Sept. 11, 2001. This provision likely would not kill all pending lawsuits against telecommunications companies, as some have alleged the NSA was recruiting phone companies to conduct legally questionable surveillance as early as February of 2001.

Dodd's hold is not the only roadblock being thrown before telecom immunity. Judiciary Committee Chairman Patrick Leahy (D-VT) and Ranking Member Arlen Specter (R-PA) both said recently that they had not seen the same documents handed over to the Intelligence Committee. Until they do, the pair said, any question of immunity is a non-starter.

The Judiciary Committee is next in line to consider the FISA update before moving a full bill to the Senate floor, which is expected in late November or early December.

FISA renewal also has stalled in the House, which would have to agree to any changes in the law before Congress sends a bill to the president. A House measure introduced earlier this month did not contain immunity for telecoms, a key sticking point for the president. Republicans managed to delay consideration of that measure using some parliamentary tricks.

In August, Congress approved the Protect America Act, which was designed to close narrow loopholes in FISA law that mandated warrants to eavesdrop on conversations originating and terminating abroad. That measure expires in February, and Congress is in the middle of correcting what critics say was over-broad authority granted in that measure.