Senators Negotiate Electronic Surveillance Bill
FISA
Bangor Daily News
Vicki Ekstrom
Boston University Washington News Service
2/1/2008
WASHINGTON – Senate leaders continue to negotiate the terms of an updated intelligence surveillance bill, deadlocked on whether to grant immunity to telecommunication companies facing lawsuits after assisting federal agencies in surveillance of potential terrorists.
Sen. Olympia Snowe, R-Maine, along with most of her colleagues on the Select Committee on Intelligence, supports immunity for the private companies.
“If a telecom company was approached by government officials asking for help in warding off another terrorist attack, and those government officials produced a document stating that the President had authorized the activity and that that activity was legal,” Snowe said on Jan. 28 at a committee hearing, “could we really say that the company acted unreasonably in complying with this request?”
In a bipartisan vote in October, the intelligence committee, chaired by Sen. John D. Rockefeller IV, D-W.Va., passed an updated version of the Foreign Intelligence Surveillance Act (FISA), a 1978 measure that allows government surveillance of suspected terrorists through wire-tapping and other techniques. The committee’s updated bill included retroactive immunity for the telecommunications companies.
Proponents of the bill say that by subjecting these private companies to lawsuits the U.S. may lose the private sector’s cooperation in future law enforcement and national security projects because of their fear of being sued. These companies are an essential resource for the U.S., according to Snowe.
“At a time when Al Qaeda lurks in the shadows, making no distinction between combatants and non-combatants, between our battlefields and our backyards,” Snowe said, “we as lawmakers must act with firm resolve to ensure that the intelligence community possesses the tools and legal authority needed to prevent future terrorist attacks on our soil.”
Opponents of granting immunity include Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee.
“We cannot expect to learn from mistakes if we refuse to allow them to be examined,” said Leahy, who said he believes the administration is trying to protect itself from being held accountable for illegal activity and that the lawsuits are possibly the only way for outside review of the administration’s actions.
“The administration knows that these lawsuits may be the only way that it will ever be called to account for its flagrant disrespect for the rule of law,” Leahy said.
Snowe favors examination of the cases but because of the sensitive information involved they should be examined by the House and Senate intelligence committees or the court established by FISA, a spokesperson for the senator said.
Additionally, while advocates for immunity argue that immunity is necessary to maintain the cooperation of telecommunications companies in the future, opponents say the bill already protects companies that provide future lawful assistance and that their opposition applies only to surveillance that was done in the past and is now being called into question.
Congress approved a White House update to FISA last summer, the Protect America Act, which cleared private companies from any future lawsuits provided that they had documentation from the government proving that what they were doing was lawful. The act was approved for only six months to allow Congress time to either pass the bill or create its own bill. Facing a Feb. 1 expiration, the House and Senate voted to extend the study period to Feb.16 and President Bush signed the extension on Thursday.
The House passed its own version of an updated FISA bill last fall and did not include the immunity provision. On Monday, the Senate narrowly voted to open the intelligence committee’s bill up for debate rather than accept the House version. The Senate is considering three amendments specifically directed at the immunity portion of the bill.
One amendment would strike immunity. Another amendment, proposed by Sen. Dianne Feinstein, D-Calif., would leave it up to the FISA court to decide if the companies acted in good faith. If they did, the FISA court would grant immunity.
A last amendment up for debate was proposed by Sens. Arlen Specter, R-Pa., the senior Republican on the Judiciary Committee, and Sheldon Whitehouse, D-R.I., also a member of the committee. Their amendment would hold the government, not the private companies, directly responsible.
All of these amendments are expected to be voted on by the Senate next week, according to Sen. Leahy’s office.
####
