Filibuster Threatened Over Wiretap Law

A Senate filibuster is promised against a bill that would grant immunity from lawsuits against telecommunication companies that participated in the Bush administration's warrantless wiretapping of U.S. citizens.

Sen. Christopher Dodd, D-Conn., reiterated his intent to block the Intelligence Committee's version of a renewed surveillance law known as FISA (Foreign Intelligence Surveillance Act) if it includes immunity.

The bill is S.2248. There is a competing FISA bill from the Judiciary Committee which does not grant immunity.

An amendment by Sen. Patrick Leahy, D-Vt., which would have stripped immunity from the Judiciary Committee version, was tabled this afternoon, by a vote of 60-34.

"Few things are more detrimental to this country than the erosion of and attack on the civil liberties we enjoy," he said. "This isn't a Democratic issue or a Republican issue; this is an American issue.

"If after debate, the Senate appears ready to pass legislation granting telecom providers retroactive immunity I will use any and all legislative tools at my disposal, including a filibuster, to prevent this deeply flawed bill from becoming law.

"More and more, Americans are rejecting the false choice that has come to define this administration: security or liberty, but never, ever both. For all those who have stood with me throughout this fight, I pledge, once more, to stand up for you."

Sen. Reid promised to keep the Senate open over the weekend in order to assure that a final bill is passed.

The original FISA law requires the government to get permission from a special court to listen in on the phone calls and e-mails of people in the United States. Changes in communications technology mean many purely foreign to foreign communications now pass through the United States and therefore require the government to get court orders to intercept them.

The Protect America Act, adopted in August, eased that restriction. The bill contained a sunset clause, expiring February 1, to allow for more detailed debate before coming to a final bill.

Privacy and civil liberties advocates say the August bill went too far, giving the government far more power to eavesdrop on American communications without court oversight.

The White House, however, wants the law enacted in August made permanent.

A provision of the law which proponents deem crucial, however, relates to granting immunity from litigation to telecommunication companies who helped the administration spy on citizens without warrants, as if required by the Constitution.

About 40 civil suits have been filed alleging the companies broke wiretapping and privacy laws by monitoring phone calls and e-mails without permission from a secret court created 30 years ago for that purpose.

One such lawsuit was brought about after a whistleblower revealed the existence of a secret room at an AT&T switching station in San Francisco. Retired AT&T technician Mark Klein helped connect a device in 2003 that he says diverted and copied onto a government supercomputer every phone call, e-mail, and Internet site query made via AT&T lines.

President has said a renewed FISA bill is imperative to protect the nation's security. Yet he also said that he would veto any FISA bill which did not protect telecoms from such lawsuits.

Sen. Dodd said today that the Intelligence Committee version granting retroactive immunity "is a dangerous, dangerous step."

"I would object to retroactive immunity not just with this administration but any administration," he said today.

On Tuesday, Reid sought to extend the current law for 30 days, to give more time to debating the bills under consideration, but Senate Republicans killed it.

White House press secretary Dana Perino criticized Democratic plans for a one-month extension of the current law. "Look, there's been six months to hash out the differences. Actually, there's been a whole year-and-a-half worth," she said.

Sen. Dick Durbin, D-Ill., chided the White House for wanting to have it both ways: espousing the importance of not letting the current law expire on February 1, and yet fighting against a one-month extension.

Durbin reminded Senators that the same administration which Congress must act quickly to updated FISA law in order to keep the nation safe ignored Congress for years about its surveillance activities, until its secret program was revealed in 2006 and "their hands were caught in the cookie jar by The New York Times," and only now offers to work with Congress to update FISA.

"Where have you been?" Durbin asked, rhetorically.

Those who supported immunity also spoke out on the floor today.

Sen. Kit Bond, R-Mo., said the legislation providing immunity to telecoms was to protect them from lawsuits he dubbed "frivolous."

Sen. Kay Bailey Hutchison, R-Tex., said telecoms are unable to defend themselves in court because the government has prevented them from releasing documents pertaining to surveillance, and so they should be protected from class action lawsuits.

She told of one telecom's CEO who told her, "'I don't think that I should be put in jeopardy, or my shareholders or consumers, [for being] a patriotic American."

Yesterday, Vice President Dick Cheney, in a speech before a conservative think tank, warned that if telecoms were not given immunity for past surveillance, they would hesitant to assist the government in the future, and is vital "to help us prevent another 9/11 down the road."

His comments did not take into account that future cooperation with government intelligence agencies would be contingent upon obtaining legal warrants as provided under the new bill, which would be protected against lawsuits.

"This is entirely appropriate," Cheney said of immunity to the Heritage Foundation.

But Sen. Russell Feingold, D-Wis., who sits on both the Intelligence and Judiciary Committees, said he spent a year and a half studying what happened at the National Security Agency with regards to wiretaps, and comes down strongly against immunity, which he called unjustified.

He said the Intelligence Committee's version of the bill was "flawed."

Sen. Bill Nelson, D-Fla., came down both ways: he said he opposed immunity, saying, "I'm not sure that the telecommunications companies were tending to their knitting as to whether they were getting legal orders from the United States government" as to getting warrants as part of a surveillance program, even many years after the shock of the September 11 attacks.

He said his judgment was based on classified documents which he could not discuss on the Senate floor, but that he "had a problem" with granting immunity.

But Nelson also said, at the end of the day, he would a support a FISA bill even if it did include immunity, hoping that the question of telecom liability for past actions would at least be put under review of the FISA court.

Senators Hillary Rodham Clinton and Barack Obama have both expressed support for Dodd's filibuster, as has fellow Democratic presidential candidate John Edwards, who said immunity would "let corporate law-breakers off the hook and hamstring efforts to learn the truth about Mr. Bush's illegal spying program.

"It's time for Senate Democrats to show a little backbone and stand up to George W. Bush and the corporate lobbyists," Edwards said. "The Constitution should not be for sale at any price."

Last week, the ACLU released results of a poll in which it nearly two-thirds of voters (63 percent) favored the government requiring a warrant before wiretapping the conversations U.S. citizens have with people in other countries, even higher than was found last October (61 percent). And 57 percent of voters reject granting immunity for phone companies that may have violated the law, preferring to let courts decide the outcome of any cases.

Meanwhile, the White House relented,after months of resistance, in allowing members of the House Intelligence and Judiciary Committees to see secret documents relating to its warrantless wiretapping program.

The House recently passed its update to the FISA bill, which does not include immunity for telecoms.

The administration had consistently refused to allow House members to see classified documents (including the president's authorization of the program and the administration's correspondence with telecom companies), even after Intelligence Chairman Rep. Silvestre Reyes, D-Tex., and ranking Republican Rep. Pete Hoekstra of Michigan said they could not support immunity without seeing them.