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Commentary: Immunity for Telecom Eavesdropping

By Beth Wellington, Published on July 30, 2008

During his administration, President Bush has demanded repeatedly that Congress update the Foreign Intelligence Surveillance Act (FISA), most recently promising to veto any bill which refused immunity to telecommunications companies which allegedly helped the National Security Agency eavesdrop on American phone and computer lines without FISA Court warrants. His position is clear. Congress must not "limit our ability to collect this intelligence and keep us safe, staying a step ahead of the terrorists who want to attack us."

After a long fight, Mr. Bush prevailed, and on July 10, 2008 signed into law H.R. 6304, the FISA Amendments Act of 2008 (FAA). The measure had been introduced in the House on June 19 and passed the next day, before being delayed briefly in the Senate, where it was passed on July 9. The debate is by no means over however, with a shift of venue from Congress to the courts. The American Civil Liberties Union (ACLU) filed a July 10, 2008 suit challenging the law's constitutionality in the Southern District Court of New York.

Contrary to what one may otherwise believe, this is not a right vs left issue, as clearly illustrated by opposition to telecom immunity from libertarians such as Julian Sanchez, senior editor at Reason Magazine, former Congressman Bob Barr, and prominent conservatives such as Bruce Fein.

It appears that President Bush's immunity demand for immunity was an attempt to halt 47 remaining law suits against the telecoms alleging illegal spying, coordinated by the Electronic Frontier Foundation and the ACLU. After unsuccessfully trying to get the suits thrown out of court, the companies had spent a huge amount of money lobbying Congress. On January 20, 2008 Lindsay Renick Mayer of the Center for Responsive Politics reported that:

"The industry has spent a total $13.4 million on lobbying in the first three months of this year, putting it on course to surpass last year's $40.2 million total. Both AT&T and Verizon moved up in the ranks of companies spending on lobbying efforts (including those in all industries), from eighth and 13th last year to third and fourth, respectively, so far this year.

The industry has also given a total of $5.3 million in federal contributions to parties, committees and candidates this election cycle, with 54 percent going to Republicans. That figure excludes any money given to Congress since March 30, i.e. contributions made as lawmakers prepared to vote on the immunity issue.

Most telling, watchdogs maintain, is the difference in Verizon, AT&T, and Sprint PAC funds donated to House members who shifted their votes from their position opposing telecom immunity on March 14 to allowing it, by supporting the FISA Amendments Act of 2008 (FAA). MAPLight.org, a public database which seeks to illuminates the connection between campaign donations and legislative votes, compiled PAC campaign contributions and correlated them with the voting records of all House members who voted on H.R. 6304, using data from Center for Responsive Politics for contributions during the period January 2005 through March 2008. Comparing the votes, Maplight found that donations averaged

Why were its critics against telecom immunity? Attorney and Salon commentator Glenn Greenwald argued that retroactive immunity served to "eviscerate the Fourth Amendment [link added], exempt their largest corporate contributors from the rule of law, and endorse the most radical aspects of the Bush lawbreaking regime."

June 18, Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation, warned,

"...whatever gloss might be put on it, the so-called "compromise" on immunity for phone companies that broke the law is anything but a compromise, and that Congress appears poised to needlessly toss the rule of law out the window and deprive these millions of ordinary Americans of their day in court. My one simple message is that no matter how they spin it, this is still immunity, period.
Indeed, there's an easy litmus test...does it allow the plaintiffs to obtain a public decision on whether the companies broke the law, and if they did, to get an injunction to stop them from breaking the law again? If the answer is "no", then it's still immunity, plain and simple.

For a few months, it appeared that the House, if not the Senate, might resist the President on the issue of telecom immunity. First came the failure to pass an extension of last year's Protect America Act. Then on March 14, 2008, the House voted on a amendment to John Conyers's version of the FAA, H.R. 3773, on a vote of 213-197, rejected the Senate's own amendment by Jay Rockefeller (D-WV) which added retroactive immunity. Only 12 Democrats had joined a unanimous 185 Republicans in demanding relecom immunity.

On March 13, President Bush had stood on the South Lawn of the White House lawn and delivered a speech warning..."The American people understand the stakes in this struggle. They want their children to be safe from terror."

According to of the Washington Post's Jonathan Weisman, House Speaker Nancy Pelosi (D-CA) retorted, "We understand our responsibility to protect the American people. What the president is trying to do is something that we think should be stopped," she said. "I am stating a fact. The president is wrong, and he knows it."

But, the House reversed itself, after Peter Hoekstra (R-MI) and Lamar Smith (R-TX) introduced the FAA, which included immunity on June 19, 2008, passing the measure less than twenty-four hours later by a vote of 293-129. What's truly odd is that by July 24, the Library of Congress THOMAS legislative information system recorded Silvestre Reyes (D-TX) as the bill's sponsor. The bill appealed to the division among Democrats attributed to the more conservative 48-member Blue Dog Coalition.

During the June 20 debate Congressional Record, one of the opponents of the bill, Barbara Lee (D-CA) argued,

"I rise in strong opposition to this very terrible bill. It does not strike the proper balance between protecting national security and preserving our cherished civil liberties.

Now I know how important those protections are from my personal experience with unwarranted domestic surveillance and wiretapping during the J. Edgar Hoover period. The government's infamous COINTELPRO program ruined the lives of many innocent persons. Others, including myself, had their privacy invaded even though they posed absolutely no threat to national security. We all remember how Dr. King and his family were the victims of the most shameful government-sponsored wiretapping. We must never go down this road again. Yet here we are again.

This bill undermines the ability of Federal courts to review the legality of domestic surveillance programs, it provides de facto retroactive immunity to telecom companies and does not sunset until December 31, 2012. How can we do that? Four years is way too long."

A good bill will protect Americans against terrorism and not erode the fourth amendment. This bill scares me to death, and I urge a "no" vote.

In voting to allow immunity on June 20, 94 House Democrats reversed their vote against immunity in March, for a total of 105 Democrats accepting the "bipartisan compromise. Democrats voting "aye" included not just the Blue Dogs, but also Rick Boucher (VA), Nick Rahall (WV), John Murtha (PA), House Leader Nancy Pelosi (CA) and House Speaker Steny Hoyer (MD). One Republican, Tim Johnson (IL) voted against the measure.

Hoyer touted a Democratic Party victory to The Politico, while Time's Massimo Calabresi,in a June 20 post Behind the Compromise on Spying outlined Pelosi's reasons for supporting the bill. An unnamed "top" aide told Calabresi that as many as ten House races might have been affected.

Pelosi contended that the telecoms offered a significant concession from the the Senate version of the bill, having offered to let a judge decide if the letters they received from the Administration show that the government was pursuing terrorist suspects. The extent of this concession has been called into doubt by the companies' descriptions of a victory.

Pelosi also argued that a Justice Department Inspector General review of the report on Bush's domestic surveillance program, and a provision making clear that Congress, together do not give the President a free pass on determining compliance with domestic surveillance laws during wartime, but rather "strengthens Congressional oversight."

But, Glenn Greenwald pointed out:

"The very idea that Democrats would lose elections if they didn't support this bill is false on numerous levels. They could have easily removed the issue simply by voting to extend the PAA orders for 6-9 months. More importantly, Karl Rove's central strategy in the 2006 midterm election was to use FISA and torture to depict the Democrats as being Weak on Terrorism, and the Democrats crushed the Republicans and took over both houses of Congress. Pelosi's claim that they support extremist Bush policies in order to avoid election losses in "swing districts" is dubious in the extreme -- an excuse to feed to Democratic voters to justify their complicity in these matters."

I join Greenwald in questioning Pelosi's rationale for signing away the Fourth Amendment's protections against unreasonable searches and seizures.

The ACLU commissioned a study by the Mellman Group back in October 2007 which showed that "voters vigorously oppose warrantless wiretaps, blanket warrants, and telecom amnesty."

And so, with House passage, the Senate placed the bill on the calendar for the week of June 23, with but opposition led by from Russ Feingold (D-WI) and Chris Dodd (D-CT, Senate Majority Leader Harry Reid (D-NV) to delay the matter until after the 4th of July recess. The Senate, of course, had already acceded to immunity once before. Barack Obama issued a statement in support of the House bill June 20, but said he would "try" to strip a provision granting immunity to telecommunication companies. A vote to do so had failed the Senate on the last go round.

With the Senate vote of 69-28 in favor of the measure on July 9, those of us who question the wisdom and/or legality of retroactive immunity, and of the FAA in general, have learned that insufficient members of Congress, in an election year, heed our concerns. As we turn to the courts and to the marketplace of ideas (see The Strange Bedfellows) we wait to see the form the Fourth Amendment will take in the Twenty-first Century.