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Tug Of War Over Wiretapping

With legislation that would legalize President Bush's eavesdropping program entangled in a battle over the side issue of corporate immunity, the White House sought to move the process forward by acceding to requests from the Senate Judiciary Committee to view classified documents its members have long demanded.

However, the White House continued to draw a line between Senators and House members.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., had demanded that other members of the panel have the same access to the same documents before he considers giving immunity to telecommunications companies that may have tapped Americans' telephones and computers without court approval. The measure is an amendment in the Senate's version of the bill rewriting the Foreign Intelligence Surveillance Act (or FISA).

White House Counsel Fred Fielding had offered to let Chairman Patrick Leahy and ranking Republican Arlen Specter see documents that might persuade them to include liability protection for telephone companies, but initially only to them.

Later Thursday, the White House agreed to expand the documents' distribution.

"Fred Fielding's offer to Sens. Leahy and Specter extends to the other senators and staff they designate," said White House spokesman Tony Fratto, adding that any such lawmakers and staff would have to be given a classified briefing first.

"The chairman and the ranking member can work this out," Fratto added.

Leahy told reporters he expected to see the documents as early as Monday.

The committee's endorsement of the immunity plan is needed for the broader legislation to move forward. Some senators refuse to consider the matter without seeing the classified documents.

"Immunity suggests that there's been a violation of the law and they want to be absolved from any liability," Sen. Dick Durbin, D-Ill., told reporters. "I would like to know what happened before I absolve anyone from liability."

The documents have so far not been made available to congressional counterparts on the House Intelligence and Judiciary Committees.

The Senate bill would direct courts to dismiss lawsuits against telecommunications companies if the attorney general certified that a company gave assistance between Sept. 11, 2001, and Jan. 17, 2007, in response to a written request authorized by the president, in trying to detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certified that a company named in a case provided no assistance to the government. The public record would not reflect which certification was given to the court.

The House version of the FISA bill does not include immunity from lawsuits for the telecoms, after vociferous opposition from privacy and consumer advocates.

"Let the courts decide whether these companies, or some of them, were acting patriotically, with nobility and legally, or whether they were breaking the law." Rep. Jerrold Nadler, D-N.Y., said.

In noting the difference between the two bills, Fratto told The New York Times that the White House would continue to withhold those documents from House Committees unless the provision is added.

"If the committees say they have no interest in legislating on the issue of liability protection, we have no reason to accommodate them," he was quoted.

A Hold On Immunity

But it may not even make it into the Senate version. After the immunity clause survived the Senate Intelligence Committee, Sen. Chris Dodd, D-Conn., announced that he would place a hold on the bill, effectively keeping it from coming to the floor.

"For six years this President has used scare tactics to prevent the Congress from reining in his abuse of authority," said Dodd today, denouncing the measure.

When Sen. Majority Leader Harry Reid suggested he might push the bill to a vote anyway, several other Democrats (including Barack Obama, Joe Biden and Russ Feingold) announced that they would back a filibuster to keep the provision out.

Telecoms like AT&T are facing lawsuits claiming that they willingly participated in eavesdropping of U.S. citizen's communications, including phone calls, e-mails and Internet traffic, at the request of the government, without the government providing warrants, as required.

In one lawsuit, filed by the Electronic Frontier Foundation, AT&T is accused of allowing the National Security Agency to monitor its customers' private communications through special equipment installed in AT&T offices across the country.

This summer, National Intelligence Director Mike McConnell said that if the lawsuits were successful, "it would bankrupt these companies."

In a curious twist in the insider trading trial of Former Qwest Chief Executive Joe Nacchio, his defense introduced papers suggesting that Qwest's refusal to participate in the secret spying program cost the company government contracts.

After the program of warrantless wiretaps was revealed by The New York Times in December 2005, the White House promised to incorporate judicial oversight to its surveillance program (as had existed before September 11, 2001), while maintaining that the president's inherent authority allowed him to authorize warrantless eavesdropping. The push-pull over this authority led to the temporary Protect America Act, and the permanent version now being debated.

The current FISA program is set to expire in February. Under these rules, the government can monitor Americans' phone and computer lines outside the country if the attorney general certifies that the American is believed to be an agent of a foreign power. The new bill would require the government to get a court order to eavesdrop on Americans wherever they are in the world.

Mr. Bush emphasized that passage of a new FISA bill authorizing his eavesdropping program was vital to "staying a step ahead of the terrorists who want to attack us."

However, at the same time he suggested that passing a simple reauthorization the Protect America Act was not enough, by saying he would veto any bill which did not include immunity for the telecoms.

The government has refused to acknowledge what assistance the telecoms provided, and has invoked the "state secrets" privilege to prevent AT&T, Verizon and Qwest from either confirming or denying their participation in the program when requested by Congress.

Civil liberties advocates have strongly opposed the amnesty effort.

"Why is the president of the United States trying to get the telecommunications companies off the hook for their illegal activity?" said Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union. "He is supposed to be upholding laws, not encouraging companies to break them."