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Right Back to Immunity

January 16, 2008 - by Donny Shaw

The PROTECT Act that Congress passed in August is set to expire on February 1st, and finding a follow-up fix to FISA is going to be one of the first orders of business when the Senate returns next week. But in order to come to an agreement on the main issues of national security and privacy it entails, the Senate is going to have to first tackle a peripheral one that has kept the debate from moving forward so far: should the companies that agreed to help President Bush bypass the laws and spy on U.S. citizens without a warrant be held liable for their actions?

The Foreign Intelligence Surveillance Act (FISA) has been updated several times since it first came into existence in 1978. The current update that almost everyone agrees is needed involves keeping up with changing technology. Globalization, internet communication, and other new technologies that don’t necessarily respect national boundaries may be making it more difficult for the government to easily eavesdrop on communications between foreign agents that may be a threat to national security.

Debate of the Foreign Intelligence Surveillance Amendments Act was cut short in December after Chris Dodd (D-CT) — pictured above — and a handful of other Senate Democrats managed to conduct a successful filibuster. Their issue with the bill isn’t that it puts American’s right to privacy at risk like they say the PROTECT Act does. Rather, it is that it provides retroactive legal immunity to the telecommunications companies that helped President Bush implement his warrantless and illegal wiretapping program. Altogether, the companies — Verizon, AT&T, Bell South and others — are currently facing over 40 lawsuits.

Senate Majority Leader Harry Reid (D-NV) has indicated that he will be brining the bill back to the Senate floor in the middle of next week to see if it can be psased before the February 1st deadline. He has also suggested that if no progress can be made on the bill this time, he’ll instead try to pass a one-month or one-year extension of pre-PROTECT Act FISA policies. Retroactive immunity would not be included, but the possible security shortcomings of the old FISA policies would remain.

Markos Moulitsas of DailyKos wrote today about the FISA/telecom immunity debate for The Hill. He notes that “the year-long extension will only come into play if 1) Dodd and his allies can clog up the works again, or 2) if they do pass a bill with retroactive immunity, but are then unable to agree with House negotiators in conference committee.”

It sounds like the later may be the most likely scenario leading to the immunity-free extension. Roll Call (subscription) reports that Dodd may have lost some of the support from his Democratic colleagues that enabled him to sustain the filibuster in December:

>Democrats said the FISA fight – which could come in the first week or two of the new session – may be an early test of whether Dodd’s presidential campaign has caused any significant strains in his relationships with colleagues.
>One senior Democratic aide said that while some Democrats could have been irked in the heat of the moment, most understand it is the nature of presidential campaigning for candidates to tackle hot-button issues and to rely heavily on veteran staff for day-to-day work in the Senate.
>"I think it’s too early to say" whether there are any hard feelings, the Democratic aide said. “But I think you could term it as a key few months for him” in terms of his reintegration into the Caucus. “It will be interesting to watch when he returns,” the aide said.

The House passed their version of the FISA fix bill in November without including a telecom immunity provision. Any FISA bill the Senate passes is going to have to be reconciled n a conference committee with members of the House, and John Conyers (D-MI), the Chairman of the House Judiciary Committee who will figure prominently in the conference committee, is less than thrilled about providing immunity. In December he wrote at the Huffington Post:

>The Administration has yet to explain why offering retroactive immunity to telephone giants who may have participated in an unlawful program is vital to our national security. Under current law, the phone companies can easily avoid liability if they can establish they received either an appropriate court order or legal certification from the Attorney General. Asking Congress to grant legal immunity at a time when the Administration has refused to provide the House of Representatives with relevant legal documents for more than eleven months is not only unreasonable, it is irresponsible.

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