Bill Totten's Weblog

Monday, February 04, 2008

Immunity Crucial in Talks on Eavesdropping Rules

by Eric Lichtblau

New York Times (October 10 2007)

Whether telecommunication utilities should have legal immunity for having helped the National Security Agency conduct eavesdropping without warrants emerged on Tuesday as the pivotal issue in the debate over wiretapping powers.

The Bush administration, urged by the telecommunication industry, is pushing hard for Congress to include immunity for past actions in any package to protect them from a series of civil suits.

House Democrats promised on Tuesday to block any deal for immunity unless the White House agreed to turn over internal records showing the utilities' role in the eavesdropping.

President Bush secretly approved the program weeks after the September 11 attacks.

Without the records, "to give immunity at this point in time would be a blind immunity", the House majority leader, Steny D Hoyer, Democrat of Maryland, told reporters.

The telecommunication industry, while keeping a low profile on its role, has mounted a vigorous campaign behind the scenes to win over Congressional supporters. The effort has considerable support among Republicans, but winning over moderate Senate Democrats may ultimately prove critical.

Telecommunication utilities have been major donors to candidates. AT&T is the second-biggest donor since 1989, contributing $38 million to candidates, including many of the lawmakers active in the eavesdropping debate, according to data from the Center for Responsive Politics.

The companies, including AT&T and Verizon, face numerous federal suits by privacy advocates and others who say they participated in what amounted to illegal eavesdropping.

The administration says the suits could bankrupt the utilities, and it has tried to invoke the "state secrets" privilege to turn them back. But a judge in California rejected that, and an appellate court is expected to rule soon on the question.

If the administration and the utilities succeed in gaining retroactive immunity from Congress, that would make the suits essentially moot.

It would also forestall any possibility that any officials or the utilities could be criminally prosecuted for their roles in the program, a prospect that has worried some officials if a Democrat is elected president next year.

Violation of the foreign intelligence law, known as FISA, carries criminal penalties, as well as financial fines for engaging in intelligence wiretapping without a court warrant. The administration maintains that Mr Bush acted within the law because his inherent constitutional powers let him authorize the security agency to eavesdrop without warrants on the international communications of people suspected of terrorist links.

The utilities "want a get-out-of-jail-free card", said Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union. "But the telecoms should not given immunity for breaking the law".

Executives for AT&T and Verizon who are involved in the lobbying effort could not be reached for comment Tuesday, their offices said.

A bill introduced on Tuesday by House Democratic leaders would impose what supporters said were significant new restrictions on the eavesdropping authorities, including greater oversight by the foreign intelligence court and greater accountability through Justice Department audits to guard against intrusions on Americans' privacy.

The bill, using blanket or "basket" warrants to collect foreign-based communications, would succeed the broadened temporary authority that Congress approved in August. Two House committees are expected to take up the measure on Wednesday.

The bill does not include immunity for the utilities. Administration officials and Republicans called that a major failing.

"By not including retroactive liability protection", said Representative Peter Hoekstra of Michigan, ranking Republican on the House Intelligence Committee, "Democrats are trying to resolve their differences with the administration on the backs of patriotic American companies that only wanted, and continue to want, to help keep our nation safe".

The administration's best chance for immunity appears to be in the Senate, where Democrats and Republicans continued to try to reach a compromise. If the Senate approves immunity as part of its bill but the House does not, the difference would have to be resolved in conference.

The administration honed its arguments on Tuesday for extending the eavesdropping powers by issuing an update of its National Strategy for Homeland Security, which was first issued more than five years ago.

"Working with Congress, we must make additional reforms to FISA and ensure that the statute is permanently amended", the 53-page document said.

It also warned about the threats from Al Qaeda and other groups driven by "an undiminished strategic intent to attack our homeland", as well as homegrown Islamic extremists.

Without citing specific threats, the update raised the specter of improvised bombs like those used in Iraq being imported to the United States.

"I do worry about complacency", the president's adviser on domestic security, Frances F Townsend, said in a conference call about the new strategy. "I do worry about the American people thinking that we're past this now. We're not past it."

Bill Totten


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