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Cheney: Telecoms deserve immunity for NSA aid

With temporary spy law expansion set to expire February 1, the Bush administration is ratcheting up pressure for a broader replacement. Not so fast, say Democratic leaders.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
3 min read

Yet another brawl is brewing among congressional Democrats and the Bush administration over enacting a controversial spy law that would immunize telephone and Internet companies from lawsuits alleging wrongdoing.

With barely a week before the Protect America Act--a six-month-long expansion of electronic surveillance law--expires, the White House has been ratcheting up pressure to renew and further expand that law.

It started Tuesday with a new press release that warned: "The terrorist threat does not expire February 1, and neither should legislation critical to keeping our nation safe."

And it continued on Wednesday by sending Vice President Dick Cheney to deliver a "major policy address" at the Heritage Foundation, a conservative think tank in Washington. His topic: "why it is so urgent that Congress update the FISA law effective immediately and permanently."

FISA, of course, is shorthand for the Foreign Intelligence Surveillance Act. The 1978 federal law has occupied much of Congress' and the Bush administration's attention ever since revelations that the president had authorized the National Security Agency to eavesdrop, allegedly on Americans, without a warrant as part of a once-secret terrorist surveillance program.

The timeline for debate on the latest bill remains unclear. As of Wednesday afternoon, a vote had not been scheduled, according to a spokesman for Senate Majority Leader Harry Reid (D-Nev.). Reid on Tuesday offered a monthlong extension of the Protect America Act to give senators more time to hash out a replacement, but Republican leaders objected to the move.

In a letter to President Bush on Wednesday afternoon, Reid made a last-minute plea for cooperation, arguing it was looking increasingly unlikely that both chambers of Congress would be able to pass a consensus version by the end of next week. (The House of Representatives, for its part, has already passed a bill that contains no legal protections for telephone companies.)

"I urge you to announce your public support for a brief extension of current law so that existing authorities are not allowed to expire while we complete work on this important bill," Reid wrote.

Last August, Congress caved to pressure from the Bush administration and signed off on the temporary Protect America Act. That law does things like erase the need for a warrant to spy on communications involving someone "reasonably believed to be outside the United States" and immunize telephone companies from lawsuits alleging illicit spy cooperation going forward. It did not, however, grant retroactive immunity to those companies, thereby wiping out scores of pending lawsuits, including one in California against AT&T.

That's what the Bush administration and prominent Republicans are hoping to achieve this time around. As Cheney told the Heritage Foundation on Wednesday, "the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits."

The Senate Intelligence Committee inched closer to granting that request, passing its version of a FISA rewrite by a 13 to 2 vote last fall. But that bill faces filibuster threats and fierce opposition from a number of leading Democrats, including Judiciary Committee Chairman Patrick Leahy (D-Vt.). His committee passed a competing version of the bill that does not contain legal protections for telephone companies.

"We now have a bill that would allow the government to review more Americans' communications with even less court supervision than before," he said of the Intelligence Committee version.

Leahy and other Democrats have indicated they're willing to accept modifications to the blanket-immunity idea. Some support an amendment that would formally "substitute" government lawyers for telephone companies facing lawsuits, but the Bush administration has rejected that idea, saying, among other things, that it would still endanger state secrets.

Sen. Dianne Feinstein (D-Calif.), with backing from other Democrats, said she's planning to introduce an amendment that would require the secret FISA court to determine the legality of letters sent by the government to telephone companies requesting access to their networks. If the court determined those letters met the legal requirements of surveillance law, and that the companies had complied with the orders in "good faith," then they'd be immune from lawsuits.