[R-G] [BillTottenWeblog] Immunity Crucial in Talks on Eavesdropping Rules

[Bill Totten]

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."

http://www.nytimes.com/2007/10/10/washington/10nsa.html?fta=y


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