Senate endorses retroactive FISA immunity for warrantless wiretapping

Bush wins hard-fought battle after Senate immunizes telecom companies that illegally opened their networks to the Feds. There's a chance a suit against AT&T could continue.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

The Democratic-controlled Senate handed President Bush a major political victory on Wednesday by voting to derail lawsuits against telecommunications companies that unlawfully opened their networks to the National Security Agency.

Senators voted 69 to 28 for the bill, which would rewrite federal wiretap laws by granting retroactive immunity to telecommunications companies as long as the government claims the request was "lawful" and authorized by the president.

Wednesday's vote followed a last-minute effort by liberal and libertarian activists to convince enough Democrats to kill or modify the bill. DailyKos called the bill "a pardon to Bush"; some activists created a Wiki to hone their message; a Salon columnist dubbed the bill a "coverup of surveillance crimes."

Many of those efforts were aimed at Sen. Barack Obama, the Democratic presidential candidate, who told us half a year ago that he would definitely not support retroactive immunity. That was then. Now he does--and he voted for the final bill on Wednesday.

Sen. Hillary Clinton voted against it. Sen. John McCain, the Republican presidential candidate, wasn't present for the vote but has repeatedly stressed his support for the measure (including in our voters' guide published earlier this year).

Earlier, by a 32-66 vote, the Senate rejected an amendment that would have removed the portion of the legislation offering retroactive immunity to telecommunications companies that engaged in illegal activities. The U.S. House of Representatives already approved the underlying legislation last month.

Opponents of the bill said it would allow Bush to cover up illegal warrantless wiretapping. "If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking," said Sen. Russ Feingold, a Wisconsin Democrat who is a member of the Senate Intelligence Committee. "That's why the administration has been fighting so hard for this immunity."

It's not yet clear what this means for the lawsuits against telecommunications companies, including one that the Electronic Frontier Foundation brought against AT&T that is currently before the 9th Circuit Court of Appeals in San Francisco.

Under Sec. 802 of the Senate bill, which amends the Foreign Intelligence Surveillance Act, no lawsuit may proceed against any "electronic communication service provider" if either one of two conditions is met.

The first is that the company provided assistance "in connection with an intelligence activity" authorized by the president between September 11, 2001 and January 17, 2007, when the wiretap program was altered to include more judicial oversight. The second condition involves a company that received a "written request" from the U.S. Justice Department saying the activity was lawful and authorized by the president. (AT&T has suggested once, and twice, that such a paper trail exists.)

Kevin Bankston, an EFF staff attorney, says his group will continue to pursue its lawsuit. "We'll be challenging the constitutionality of this law," he said. "We think it unconstitutionally violates separation of powers and due process... We are going to be challenging this immunity as unconstitutional."