White House Opposes Any Delay in Telco Immunity

The Bush administration July 7 threatened to veto the Foreign Intelligence Surveillance Act bill if lawmakers approve an amendment to the legislation that would delay immunity for telephone carriers until the Department of Justice conducts a study about the carriers' role in President Bush's warrantless wiretapping program.

The current bill before the Senate grants the telephone companies retroactive immunity from more than 40 civil lawsuits claiming the carriers provided customer telephone and e-mail records of millions of U.S. citizens -- often without a warrant or subpoena--to the government. The U.S. House approved the legislation June 20.

The legislation also calls for an investigation into the warrantless wiretapping program by the Inspectors General of the DOJ, but only after Congress grants telco immunity. But an amendment by Sen. Jeff Bingaman, D-NM, would delay both the immunity contained in the FISA bill and the civil lawsuits pending against the carriers until 90 days after the DOJ investigation.

In a letter to Senate Majority Leader Harry Reid, Attorney General Michael Mukasey and Jim McConnell, the director of National Intelligence, argued that Bingaman's amendment would have the effect of "deferring any decision on this issue for more than a year."

That, they wrote, was unacceptable to the White House.

"Continuing to deny appropriate protection to private parties that cooperated in good faith with the government in the aftermath of the attacks of Sept. 11 has negative consequences for our national security," Mukasey and McConnell wrote. "The apparent purpose of the amendment is to postpone a decision on whether to provide liability protection at all."

If the Senate approves the amendment, both Mukasey and McConnell said they would recommend President Bush veto the FISA bill.

"Continued delay in protecting those who provided assistance after Sept. 11 will invariably be noted by those who may someday be called upon to again to help the nation," they wrote to Reid.

Under the new FISA bill, a district court will review the authorizations the White House used to induce telephone carriers to participate in the program. If the court determines the authorizations (constitutional or not) existed, the civil cases pending against the carriers would not proceed.

The telcos contend that they relied on existing federal, state and local laws and assurances from the highest level of government when providing access to consumers' personal telephone calls and e-mail without a subpoena.