U.S. Sen. Patrick Leahy, D.-Vt., questioned on Oct. 31 whether an "after-the-fact free pass" is in order for telecommunications carriers that cooperated with the Bush administration's domestic spying program of telephone wiretapping and e-mail surveillance.
As part of the renewal of FISA (Foreign Intelligence Surveillance Act), the White House wants Congress to grant immunity for telecommunications carriers that allegedly turned over telephone and e-mail records—often without a warrant or subpoena—to the government in the aftermath of the Sept. 11, 2001, terrorist attacks on the United States.
"A retroactive grant of immunity or pre-emption of state regulators does more than let the carriers off the hook," Leahy, chairman of the Senate Judiciary Committee, said as he began a hearing on the FISA bill. "Immunity is designed to shield this administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress."
The Senate Select Committee on Intelligence already has approved legislation (S. 2248) that would grant immunity to the carriers for their participation in the domestic spying program. The House version of the bill currently includes no immunity for the carriers.
"At the outset I should acknowledge the grave concern I have with one aspect of S. 2248," Leahy said. "It seeks to grant immunity—or, as Sen. [Chris] Dodd has called it, 'amnesty'—for telecommunications carriers for their warrantless surveillance activities from 2001 through this summer, which would seem to be contrary to FISA and in violation of the privacy rights of Americans."
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Sen. Russ Feingold, D.-Wis., who sits on the Senate Select Committee on Intelligence and voted against the panel's bill, said he was concerned the legislation provides "sweeping retroactive immunity to those alleged to have cooperated with the president's warrantless wiretapping program."
The carriers are under a federal court order to neither confirm nor deny their participation in the program. "Our company essentially finds itself caught in the middle of an oversight dispute between the Congress and the executive branch relating to government surveillance activities," AT&T wrote to lawmakers Oct. 12.
Leahy said before his committee would consider immunity for the carriers it would have to see the legal justifications, authorizations and other documents that show the basis for the actions of the government and the carriers. Frustrated by the lack of documentation supplied by the White House, the Senate Judiciary Committee earlier this summer authorized and issued subpoenas for documents related to the legal justification for the president's program.
According to Leahy, the White House began releasing some documents to the committee last week.
"I am considering carefully what we are learning from these materials," Leahy said. "The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass. If Americans' privacy is to mean anything, and if the rule of law is to be respected, that would be the wrong result."
The New York Times first broke the story of the administration's warrantless wiretapping in late 2005 and USA Today later reported that the NSA (National Security Agency) is using information provided by telephone carriers to mine tens of millions of calling records for data. President Bush has admitted to the warrantless wiretapping and e-mail eavesdropping.
"It is imperative that Congress provide liability protection to companies that are alleged to have assisted the nation in the conduct of intelligence activities in the wake of the Sept. 11 attacks," Assistant Attorney General Kenneth Wainstein told the Senate Judiciary Committee. "Any company that assisted the government in defending our national security deserves our gratitude, not an avalanche of lawsuits."
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