Nov. 15 was a bad day for the nations telephone carriers on Capitol Hill, as two separate congressional votes refused to retroactively grant immunity to the telephone companies that cooperated with the Bush administrations domestic spying program.
In a full U.S. House vote, lawmakers approved the RESTORE Act, a renewal of the FISA (the Foreign Intelligence Surveillance Act). Despite a threat from the White House that it would veto the bill if it didnt provide immunity for the telcos, lawmakers approved the measure 227-189.
In the Senate, the Judiciary Committee approved similar legislation that excludes immunity for the carriers.
"Most significantly, the bill does not provide immunity to telecommunications companies that participated in the presidents warrantless surveillance program," Speaker Nancy Pelosi said in a statement. "We cannot even consider providing immunity unless we know exactly what we are providing immunity from. And even then we have to proceed with great caution."
President Bush wants Congress to grant immunity to the carriers that agreed to turn over customer telephone and e-mail records—often without a warrant or subpoena— to the government. The White House launched the warrantless surveillance in the aftermath of the Sept. 11, 2001, terrorist attacks on the United States.
Verizon, AT&T and Qwest Communications International all contend they acted in reliance on existing federal, state and local laws. The carriers are also under a federal court order to neither confirm nor deny their participation in the program.
The Senate Judiciary Committee vote puts its version of the bill on a collision course with the Senate Intelligence Committee, which included carrier immunity in its FISA renewal.
"The full Senate will yet need to resolve the immunity issue," Judiciary Committee Chairman Patrick Leahy said in a statement. "While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable."
He added, "Passing a law to whitewash the administrations undermining of another law would be a disservice to the American people and to the rule of law."
The carriers also contend that the 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."
Democratic presidential candidates Barack Obama, Chris Dodd and Joe Biden all oppose granting immunity to the carriers. Other Democratic candidates, including Hillary Clinton, have not stated a position the issue, and Republican presidential hopefuls have also been mum.
The New York Times first broke the story of the administrations warrantless wiretapping in late 2005, and USA Today later reported that the National Security Agency is using information provided by telephone carriers to mine tens of millions of calling records for data.
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