Upcoming Senate vote may shield wiretap collaborators
Politicians clear first hurdle toward approving sweeping legal rewrite that would crush lawsuits alleging illegal cooperation between the government, communications companies.
Correction 2:40 p.m. PST: The original version of this story incorrectly stated the vote count. It was 76-10.
In a preliminary victory for the likes of AT&T and Verizon, the U.S. Senate has ventured a step closer to passing a law that would crush lawsuits accusing telecommunications companies of illegal cooperation with government spying programs.
By a 76-10 vote on Monday, the senators agreed to cut off the possibility of a filibuster that would delay final action on the so-called FISA Amendments Act, which the Bush administration argues is necessary to remove supposed hurdles to snooping on foreign terrorists. All 10 of the votes against limiting debate came from Democrats. (FISA refers to the Foreign Intelligence Surveillance Act, a 1978 law that sets the ground rules for intercepting communications between foreigners and U.S. persons.)
By overcoming that procedural hurdle, senators are now poised to consider several amendments and proceed to a final vote on that bill, which was originally approved by a 13-2 vote in a closed-door meeting of the Senate Intelligence Committee in late October. Critics, however, say that version gives the executive branch too much unchecked authority to eavesdrop, without a court order, on communications between Americans and people "reasonably believed to be outside the United States."
Equally controversial is the immunity provision contained in the bill. The language is crafted broadly enough to shield not only traditional telephone companies and Internet service providers, but e-mail providers, search engines, and instant-messaging services too. And the legal shield would apply not only to corporate cooperation with programs run by the National Security Agency, but also any activities at the CIA, the Defense Department, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the State Department, the Treasury Department, Homeland Security and other intelligence-related organizations.
Update 12:40 p.m. PST: An aide to Senate Majority Leader Harry Reid told CNET News.com on Monday afternoon that he wasn't sure exactly when a final vote would occur. Reid has reportedly set aside 30 hours for the bill's consideration.
The measure is intended to replace a temporary law, known as the Protect America Act, which is set to expire in early February and has been attacked by civil liberties groups and some Democrats as insufficiently protective of Americans' privacy.
The Protect America Act effectively expanded the government's ability to collect, without a warrant, phone and Internet conversations in which at least one party is reasonably believed to be outside the United States. But although it immunized private companies from lawsuits going forward, it did not address what to do about scores of pending lawsuits, such as the one that the Electronic Frontier Foundation filed against AT&T, alleging illegal behavior by telephone companies.
Bush administration officials insist their spying operations will fall apart without cooperation from communications companies and that those companies were only doing their patriotic duty. The president has made it clear he will veto any legislation that fails to grant retroactive legal immunity.
But some Democratic senators attacked that reasoning on Monday, arguing that Americans need assurances that their private conversations won't be illegally tapped by their service providers. They urged pursuit of a stripped-down version of the FISA bill, recently approved by the Senate Judiciary Committee, which lacks legal immunity for telephone companies. Presidential hopeful Chris Dodd (D-Conn.), who has vowed to block passage of any bill that includes retroactive immunity, delivered a lengthy speech before the vote urging his colleagues to oppose any bill that lets telephone companies off the hook.
"I'm here because the truth is not their private property," he said, referring to Bush administration officials who have sought to suppress lawsuits against telecommunications companies on state secrets grounds.
But other key party members don't share that view. Sen. John Rockefeller (D-W.Va.), the Intelligence Committee's chairman, said some components of that bill may be offered as amendments to his committee's bill, but he appeared unwilling to budge on the idea of shielding telephone companies from lawsuits.
"Companies who participated at a great risk of exposure and financial ruin for one reason and one reason only, in order to help identify terrorists and prevent follow-on terrorist attacks, they should not be penalized for their willingness to heed the call during a national emergency," Rockefeller said on the Senate floor Monday.
Sen. Arlen Specter (R-Penn.) said he's still hoping to spearhead a sort of compromise approach aimed at stopping short of full immunity. With backing from some Democrats, including Judiciary Committee Chairman Patrick Leahy (D-Vt.), he plans to offer a "substitution" amendment, in which government lawyers would formally take the place of the telephone company or other parties being sued.
"I do not know whether there is wrongdoing or not, but I do not think it is appropriate for the government to act secretly, surreptitiously...and then come back at a later date and say please exonerate us," he said.
Whatever ends up happening in the Senate this week won't necessarily be the final word. A divided House of Representatives has already approved a rewrite of wiretapping law that does not provide legal immunity for private companies. Any differences between the final Senate version and the House bill will have to be reconciled in what appears destined to be a contentious conference.
Update 1:35 p.m. PST: Details about additional proposed amendments to the corporate immunity section of the bill began trickling out as debate continued Monday afternoon.
Sen. Dianne Feinstein (D-Calif.) said she plans to offer an amendment that attempts to place limits on the immunity protection for companies. According to the latest draft language provided by her office, companies would be eligible for that privilege only if the secret Foreign Intelligence Surveillance Court had determined that one of three things occurred: the government's written request to the company complied with federal law, the company executives were acting in "good faith," based on "a demonstrable reason to believe that compliance with the written request or directive...was permitted by law," or the company didn't "provide the alleged assistance" at all.
In addition, Dodd said he plans to team up with Sen. Russ Feingold, the Wisconsin Democrat with the distinction of being the only senator to vote against the contentious Patriot Act, to offer an amendment that would strip the entire immunity provision, which means pending suits would not be immediately tossed.
Update 7:50 p.m. PST: On Monday evening, Reid decided toin an effort to give politicians more time to work out how to handle the thornier provisions of the bill.