WASHINGTON--Despite demands from President Bush to shield telephone and Internet companies from surveillance-related lawsuits, key U.S. senators are reluctant to offer legal immunity. But they may force taxpayers to pick up the legal tab instead.
Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), the co-chairmen of the Senate Judiciary Committee, said at a hearing here Wednesday that they still don't have enough information to decide whether it's wise to immunize any past assistance by telecommunications providers to a wide swath of U.S. government agencies over the last six years.
That's precisely what would happen, however, if a bill called the the FISA Amendments Act, which passed by a 13-2 vote in a closed-door meeting of the Senate Intelligence Committee a few weeks ago, becomes law. That proposal, which has won some praise from the U.S. Department of Justice, is now being weighed by the Judiciary Committee.
Specter suggested granting "indemnification" to telephone companies who allegedly cooperated with the government's surveillance regimes in violation of federal privacy laws. That would mean lawsuits could go forward, but taxpayers would be responsible for covering any legal expenses or damage awards against the communications companies. Damages could run into the tens of billions of dollars if the suits are successful, according to Senate Intelligence committee estimates.
"If we are to close the courthouse door to some 40 litigants who are now claiming that their privacy has been invaded, it seems to me we are undercutting a major avenue of redress," Specter said.
Leahy, too, voiced reluctance toward granting blanket immunity.
"The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass," Leahy said.
The FISA Amendments Act is the Senate's attempt to overhaul a temporary wiretapping law called the Protect America Act, which was hurriedly passed by Congress in August. That bill broadened the Bush administration's ability to spy on foreign communications routed through the United States without a warrant, which the bill's primarily Democratic critics argue threatens Americans' civil liberties.
The existing law, set to expire on February 1, granted legal immunity to private companies that assist the U.S. government in its electronic surveillance going forward. But the Bush administration has now threatened to veto any proposed renewal of the law that does not shield wiretapping cooperation in the past as well.
Kenneth Wainstein, assistant attorney general for national security at the U.S. Department of Justice, strongly discouraged politicians at Wednesday's hearing from endorsing anything but blanket immunity for the communications companies. He said protecting communications providers from lawsuits is important to national security as a whole because "every little nugget of information that comes out in the course of this litigation helps our enemies."
"Any company that assisted the government in defending our national security deserves our gratitude, not an avalanche of lawsuits," Wainstein said in written testimony.
Indemnification would also be the wrong approach, Wainstein said, because it would still require communications companies to go through the process of litigation. He argued that could potentially inflict damage to their corporate reputations--or even endanger employees working overseas if terrorists or surveillance targets catch wind of the role those companies are playing. Furthermore, he added, forcing the government to foot the companies' legal bills would be an unacceptable burden on American taxpayers.
Sen. Dianne Feinstein (D-Calif.) suggested that perhaps Congress could cap the amount of damages handed out in such cases in an effort to ease the taxpayer burden. "This isn't a mistake made by the taxpayers, it's a mistake by the government," she said.
Leahy grilled Wainstein at length on why retroactive immunity is necessary at all. A report accompanying the Senate Intelligence Committee's approved bill says that at regular intervals between 2001 and early 2007, the Bush administration presented electronic communications providers with letters saying the president or the attorney general had certified the various wiretapping requests as lawful.
Given those letters, "if you feel secure in what you did, why ask for further legislation?" Leahy asked Wainstein. "Why not let the courts deal with the certifications that the president said it was legal?"
"The concern is airing out what the companies did and putting them through the cost, the litigation, the exposure, the difficulty of litigation when they were really just doing something to protect the government," replied Wainstein.
All Democrats present at the hearing questioned the idea of granting immunity, with Sens. Dick Durbin (D-Ill.) and Russ Feingold (D-Wisc.) growing particularly animated.
"Isn't it reasonable to say the company has a statutory obligation to protect my identity and to only give it up for a legitimate, statutorily-recognized purpose?" Durbin asked Wainstein, who responded that he thought all of the companies who have assisted the government "acted out of patriotic duty."
With the exception of Specter, most Republicans on the committee defended the Bush administration's position, asking Wainstein questions intended to tout the importance of surveilling the enemies of the United States at wartime.
"We should be bending over backward to ensure they are protected in that assistance for the national good," said Sen. Jon Kyl (R-Ariz.).
Sen. Jeff Sessions (R-Ala.) said he didn't think the companies should be punished for "doing what their country asked them to do," allowing those who filed lawsuits in the process to discover "everything they can discover about the most top secret program the government has."