Senate Panel Approves Immunity for Spying Telcos

The Senate Intelligence Committee approved Thursday by a vote of 13-2 another set of changes to the nation's surveillance laws, including a way for telecoms to escape lawsuits charging them with violating the nation's privacy laws by helping with secret spy programs.

Democratic Senators Russell Feingold (Wisconsin) and Ron Wyden (Oregon) were the two lone votes against the bill, which they successfully modified to include a provision forcing the NSA to get warrants when targeting Americans oversees.

AT&T and Verizon are bearing the brunt of so-far surprisingly effective lawsuits against the company's for their allegedly helping the government warrantlessly wiretap and data-mine Americans communications. According to the Washington Post's account, the companies would be able to escape the lawsuits if the Attorney General writes the right letter to the judge:

The bill would allow a court to dismiss the lawsuits if the attorney general certifies to the court one of two things: the carrier did not aid the government, or the carrier's assistance was related to an intelligence activity authorized by the president between Sept. 11, 2001, and Jan. 17, 2007, and it was designed to prevent or detect a terrorist attack.

The latter certification must say that the authorization was in written form from the attorney general or an intelligence agency head, indicating that the activity was authorized by the president and determined to be lawful. This certification can be presented in secret, with the court never disclosing which of the two cases applied.

That's a very interesting standard, since it does not require that the telecoms actually got an order to wiretap the internet or turn over Americans calling records to the NSA. Instead, the Attorney General has to tell a judge only that the telecoms participated in a program that the administration certified to itself was legal.

The measure is also interesting because its not clear that the NSA's data-mining of phone records violated any law (as opposed to targeting Americans for wiretaps, which clearly violates surveillance law). What's clearly illegal in the data-mining program is the carriers giving billions of call records to the government. But this bill, according to the summary, cleverly gets the carriers out of that legal predicament.

According to the Los Angeles Times:

The Senate measure is the product of weeks of discussions between the Bush administration and the nation's top intelligence officials with Sen. John D. Rockefeller IV (D-W.Va.), the chairman of the intelligence committee, and Sen. Christopher S. Bond of Missouri, the panel's ranking Republican.[...]

Their bill would give a special federal court expanded authority to monitor an espionage program that was first authorized by Bush in the aftermath of the Sept. 11 attacks.[...]

Under the Senate committee's approach, the NSA – which eavesdrops on electronic communications around the world – would have clear authority to intercept calls and e-mails between foreigners, even when they cross over networks inside the United States.

The bill would also allow the NSA to monitor communications between a suspect overseas and someone in the United States, without a warrant. Instead, the government would be required to win court approval for the procedures it uses to determine that its surveillance targets are outside the country.

The bill's text has not yet been released, but Senator Christopher Dodd, who is in the race for the presidency, has vowed to put a hold on the bill and personally filibuster it if necessary. House Majority Leader Harry Reid indicated, according to Congressional Quarterly, that he would bring the bill to a vote in the full Senate in mid-November, regardless of Dodd's opposition.

On Friday, Russ Feingold tried to stake out a defiant middle ground, noting that the bill must first also go through the Senate Judiciary Committee, which he sits on. Both Sens. Patrick Leahy (D-Vermont) and Arlen Specter (R-Pennsylvania), the Chairman and ranking Republican respectively, have stated their opposition to any immunity provisions until they learn more about the bill.

But if that doesn't work, Feingold hints at the F-word:

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.

The administration showed some documents about its secret surveillance programs to the Intelligence committee. According to one source who is closely following the debate, the documents did not include the Justice Department's own legal defense of the programs – which a former attorney who led a revolt against the program described as the "biggest legal mess I encountered there." Instead, the source, who has not seen the documents, described them as legal orders to the telecoms to participate.

If that's the case, the date of the orders become key. Qwest's former CEO Joseph Nacchio says he repeatedly turned down requests from the NSA to help with a massive call records data mining operation since they would not hand him a legal order.

See Also:

• Dem Pushing Spying Immunity Bill Gets Spike in AT&T and Verizon ...
• Senator Dodd Announces He Will Stop Telecom Immunity Bill
• EFF Moving to Uncover Telco Immunity Lobbying
• Telcos Respond to Spying Questions; AT&T Says Blame the Government
• White House Spy Docs Show Surveillance Was Illegal, Senator ...

Photo: Mark Strozier