Bush Continues Telco Immunity Pressure

For the second time in two days, President Bush publicly rebuked the U.S. House for insisting on no retroactive immunity for telecom carriers who participated in the president's warrantless spy program.

The Senate on Feb. 13 approved a renewal of FISA (Foreign Intelligence Surveillance Act) that includes immunity for the carriers. Later that day, the Democratic leadership of the House unsuccessfully sought a 21-day FISA extension instead of approving the Senate version. The current FISA measure expires at midnight Feb. 15.

The House effort to extend FISA was defeated, 222-191, and House leaders are now contemplating letting FISA lapse while it negotiates a compromise with the Senate. In the House version of the FISA renewal approved in November, members voted to deny retroactive immunity to the carriers.

Bush has vowed to veto any FISA renewal that does not include immunity for the carriers.

"It is clear that the Senate bill would pass the House with bipartisan support," Bush said Feb. 14 at a White House briefing. "Republicans and Democrats in the Senate can put partisanship aside, and pass a good bill. There's no reason why the House cannot do the same, and pass the Senate bill immediately."

Bush said that without immunity for the carriers, "We may not be able to secure the private sector's cooperation with our intelligence efforts. If you cooperate with the government and then get sued for billions of dollars because of the cooperation, you're less likely to cooperate. And obviously we're going to need people working with us to find out what the enemy is saying and thinking and plotting and planning."

The president added he was willing to delay a long-planned trip to Africa to stay in Washington to help negotiate the FISA renewal before it expires.

Speaker of the House Nancy Pelosi said in a statement Feb. 13 that any fault rests with the White House and Republicans in the House.

"An overwhelming majority of House Democrats voted to extend that law for three weeks so that agreement could be reached with the Senate on a better version of that law," Pelosi said. "The President and House Republicans refused to support the extension and therefore will bear the responsibility should any adverse national security consequences result."

Pelosi also noted that even if FISA expires, "The American people can be confident that our country remains safe and strong. Every order entered under the law can remain in effect for 12 months from the date it was issued."

Although it is widely acknowledged, even by the president, that the carriers provided customer telephone and e-mail records—often without a warrant or subpoena—to the government, the telecoms insist they acted on authority from the highest levels of government, including the White House.

The carriers' cooperation with the government prompted more than 40 civil lawsuits claiming the carriers violated the constitutional rights of Americans. The Electronic Frontier Foundation, the co-lead counsel in the now consolidated lawsuits, contends the carriers broke the law by providing the National Security Agency with the full content of billions of e-mails, text messages and VOIP (voice over IP) calls. The EFF claims it is an issue for the courts to decide.

The carriers insist that the real issue is between the White House and Congress. "Current law … provides a complete defense to any provider who in good faith relies on a statutory authorization," AT&T wrote in an Oct. 12 letter to lawmakers. "If the government advises a private company that a disclosure is authorized by statute, a presumption of regularity attaches."