A controversial bill which would grant retroactive immunity to phone companies for assisting the government in illegally prying into Americans' private communications was pulled from the Senate floor today under threat of a filibuster and a pile of pending amendments.
Late Monday Senate Majority Harry Reid delayed consideration of a vote on the updated Foreign Intelligence Surveillance Act (FISA) bill until January.
Reid, D-Nev., said with more than a dozen amendments planned, there was not enough time left on the legislative calendar to manage them.
"Everyone feels it would be to the best interests of the Senate that we take a look at this when we come back after the first of the year," he said.
"With more than a dozen amendments to this complex and controversial bill, this legislation deserves time for thorough discussion on the floor," he said.
Sen. Christopher Dodd, D-Conn., who had vowed to filibuster in opposition to the bill's provision to grant immunity, said in a statement that "Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy.
"The President should not be above the rule of law, nor should the telecom companies who supported his quest to spy on American citizens," Dodd said.
The new surveillance bill is meant to replace a temporary eavesdropping law Congress hastily passed in August. That law, which expanded the government's authority to listen in on American communications without court permission, expires Feb. 1.
The bill up for consideration is actually one of two competing versions of an updated FISA bill, which were voted out of the Senate's Intelligence and Judiciary Committees.
The Intelligence Committee version includes the immunity provision, the Judiciary's does not. The House recently approved a surveillance bill that also does not provide retroactive immunity.
Reid said that because of protocol the Intelligence Committee version would be the base text for the Senate's debate, and that an amendment that strips the immunity provision would be pending.
But after the Senate voted to open debate on the bill, Senators clashed over whether the government's need to eavesdrop on potential terrorists outweighs Americans' expectations that their private communications are protected.
The original 1978 law dictates when federal agents must obtain court permission before tapping phone and computer lines inside the United States to gather intelligence on foreign threats. Agents may tap lines without court permission outside the country.
The most contentious question is whether telecommunications companies that helped the government tap American communications after the Sept. 11, 2001, terrorist attacks should be granted immunity from lawsuits stemming from their actions. The surveillance was done without permission from the secret court created 30 years ago to protect Americans from unwarranted government intrusions on their privacy.
President Bush, in pushing for less judicial oversight of the administration's surveillance activities, has also made telecom immunity a key demand. There are roughly 40 pending civil lawsuits alleging violations of communications and wiretapping laws. The White House said if the cases go forward they could reveal information that would compromise national security, and potentially bankrupt the companies.
The companies were helping the Bush administration carry out the so-called Terrorist Surveillance Program, a still-classified effort that intercepted communications on U.S. soil without oversight from the Foreign Intelligence Surveillance Court from Sept. 11 to January 17, 2007.
However, while the administration had admitted the program was created following the September 11 attacks, news reports have suggested that the Bush administration solicited the help of telecoms with its surveillance activities months earlier, within weeks of taking office.
The New York Times reported Sunday that, according to a lawsuit filed in New Jersey, representatives of the National Security Agency met with AT&T officials in February 2001 to discuss getting access to all global phone and e-mail traffic at the phone company's network center in Bedminster, N.J.
The suit also alleges that Verizon set up a dedicated line from one of its operations centers to a Quantico, Va., military base which allowed the government to access all its communications - and that attempts by security staff to install safeguards against hacking were rejected by superiors.
"For the last six years, our largest telecom companies have been spying on their own American customers," said Sen. Christopher Dodd, D-Conn.
"This program is one of the worst abuses of executive power in our nation's history," said Sen. Russell Feingold, D-Wis. "It's time for congress to state, when we pass a law we mean what we said," Feingold said.
Perhaps the strongest comments came from Sen. Edward Kennedy, D-Mass., who took Mr. Bush to task on his previous statements about the need to update the FISA law.
"The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill," noted Saen. Edward Kennedy, D-Mass. "So if we take the President at his word, he is willing to let Americans die to protect the phone companies."
Sen. John Warner, R-Va., said he believes the TSP was legal and "essential to prevent further terrorist attacks against our homeland." The companies helped out of concern for the country's security after the terrorist attacks, he said.
Multiple efforts were under way Monday to craft alternative immunity provisions. Among the potential amendments is one by Sen. Arlen Specter, R-Pa., who wants the U.S. government to stand in for telecommunications companies as the defendant in the cases. The Senate Judiciary Committee rejected putting such a provision in its version of the bill.
Sen. Dianne Feinstein, D-Calif., also introduced an immunity amendment that would leave it to the 15 judges on the FISA court to decide whether the companies merit protection from lawsuits. The court, which was not consulted on the electronic surveillance at the center of the debate, would determine whether the government's written requests to the telecommunications companies were legal. If not, it would determine whether the telecommunications companies believed they were complying with a good-faith request from the government.
The White House issued a statement Monday night protesting the Feinstein amendment.
"Adding a review by the FISA court to the existing certification process in the Intelligence Committee bill is not acceptable," said White House spokesman Tony Fratto. "Imposing such a procedure is unnecessary and fraught with risks."