Telecom immunity is not only spying concern

As the Senate prepares to consider legal immunity for telecommunications firms that aided the Bush administration's anti-terrorism spying program, one watchdog group is trying to draw attention to what it views as bigger-picture provisions of the underlying intelligence bill.

Center for Democracy and Technology President Leslie Harris told reporters Tuesday that telecom immunity has captured a great deal of press attention in recent weeks. But while that issue is important, she said it "is not necessarily, in the long run, the most substantive issue" in the debate about the Foreign Intelligence Surveillance Act.

A flurry of pending lawsuits accuse companies like AT&T of breaking wiretapping and privacy laws by monitoring telephone calls and e-mails without permission of the secret court created by the law, known as FISA.

Senate Majority Leader Harry Reid, D-Nev., said he plans to bring to the floor as early as Thursday a bill approved by the Senate Intelligence Committee that includes retroactive protections for the telecom firms. A Judiciary Committee bill without the immunity likely will be offered as a substitute, CDT staffers said.

The group said it believes both measures fall short of a House-passed version that CDT policy watchers Jim Dempsey and Gregory Nojeim said strikes a better balance between security and civil liberties interests. The center does, however, back the Senate Judiciary bill.

On Monday, Judiciary ranking Republican Arlen Specter of Pennsylvania introduced a new measure that would replace the government for the carriers as defendants in any litigation over spying. The bill, S. 2402, would protect the companies while the lawsuits continue.

"The litigation ought to go forward as is, and Congress ought to adopt a cap on damages -- no substitution, no indemnification, no immunity," Nojeim said. Specter's bill has been placed on the agenda for Judiciary's Thursday business meeting.

He said the most critical question is who ultimately authorizes the overarching spying program. Some have called for the intelligence court to issue a blanket order for the surveillance, and others want to give full control to the attorney general and director of national intelligence.

The House and Senate Judiciary versions would require a full court order when a "significant purpose" of international surveillance is monitoring a person in the United States. The Senate Intelligence bill lacks that provision, Nojeim said.

He added that the Senate Judiciary bill also "cuts off" the argument by President Bush that the congressional authorization for use of military force, which was approved after the Sept. 11, 2001, terrorist attacks, implicitly permitted warrantless surveillance.

In a Monday speech, Bush urged Congress to ensure that "our intelligence professionals can continue to monitor terrorist communications" by making permanent a temporary but hotly contested intelligence bill that Congress passed in August.

The statute expires Feb. 1, but "the threat from the terrorists does not expire," Bush said, slamming efforts by some lawmakers to block the immunity provision. "Congress must stop this obstruction and make certain our national security professionals do not lose a critical tool for keeping our country safe," he said.