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Surveillance Bill Compromise Likely to Deliver Immunity for Telecoms

Credit: wdcpix.comAfter a year of acrimonious debate, Democrats and Republicans have agreed on a compromise bill to overhaul the Foreign Intelligence Surveillance Act (FISA). As first reported by The Wall Street Journal this morning, the bill broadens the government's ability to spy on people in the U.S. and contains a provision to address the roughly three dozen lawsuits against the telecommunication companies that allegedly participated in the adminstration's warrantless wiretapping program.

That provision, much to the dismay of civil liberty and privacy activists, sets a process by which the companies could receive immunity for participation in the program. The matter would go to a federal district court judge. According to the bill text, if a company can show the judge that the Attorney General or the head of an intelligence agency had written the company and said the surveillance was "designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack" against the U.S. and had been "authorized by the President and determined to be lawful," then the lawsuits against that company would be dismissed.

The lawsuits came after the New York Times first revealed the program's existence in December of 2005. The program, which authorized surveillance conducted without a warrant from the Foreign Intelligence Surveillance Court, as required by FISA, lasted from October, 2001 until January, 2007, when the President announced that all wiretaps would be once again approved by the FISA court.

Critics say the compromise essentially guarantees immunity to the companies, because the companies received such written assurances. Earlier this year, the Senate intelligence committee declared in a report that lawmakers and staff had examined the classified written communications between the executive branch and the telecoms who'd participated in the program. And all those letters "stated that the activities had been authorized by the President" and all said that the program was lawful.

"The only question the court has the power to review is a question that we already know the answer to," says Kevin Bankstrom, a senior attorney with the Electronic Freedom Foundation and one of the lead lawyers in a suit against AT&T for its alleged participation in the program. "Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity," Sen. Russ Feingold (D-WI) said this afternoon. In a statement this morning, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) says he opposes the bill and complains that it "would dismiss ongoing cases against the telecommunication carriers that participated in that program without allowing a judicial review of the legality of the program." 

"Telecommunications companies, which have lobbied lawmakers aggressively in recent weeks, support the compromise as does the White House," reports the Journal.

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