President Bush used his last State of the Union speech Jan. 28 to urge lawmakers to grant telecommunications carriers retroactive immunity for cooperating with his warrantless domestic spying program.
The immunity issue is tied to a renewal of FISA (Foreign Intelligence Surveillance Act), which expires Feb. 1. The carriers contend they relied on existing federal, state and local laws and assurances from the highest level of government to provide customer telephone and e-mail records - often without a warrant or subpoena - to the government.
Bush has promised to veto any legislation that does not grant immunity to the telephone companies. The carriers are also under a federal court order to neither confirm nor deny their participation in the program.
"To protect America, we need to know who the terrorists are talking to, what they are saying and what they're planning. Congress passed legislation to help us do that. Unfortunately, Congress set the legislation to expire on February the 1st," Bush said. "Congress must ensure the flow of vital intelligence is not disrupted. Congress must pass liability protection for companies believed to have assisted in the efforts to defend America."
The FISA renewal legislation is currently on the floor of the U.S. Senate. On Jan. 28, Democrats defeated a motion to terminate further debate on the bill. Hillary Clinton and Barack Obama, two Democratic presidential hopefuls, voted to continue debate on the legislation while John McCain, a Republican contender for the White House, was present but did not vote.
The House Nov. 16 refused to retroactively grant immunity when it approved a FISA revision known as the Protect America Act. The Senate Select Committee on Intelligence approved telco immunity as part of its FISA bill, while the Senate Judiciary Committee voted for no immunity.
"We've had ample time for debate. The time to act is now," Bush said.
The Electronic Frontier Foundation, the co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, 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."
In pushing to cut off debate on the bill Jan. 28, Sen. Orrin Hatch, R-Utah, said, "The identification of any company that may or may not have cooperated with the government is highly, highly classified information. Our security is very dependent on the cooperation of the telecoms."
Last month, Sen. Chris Dodd, D-Conn., vowed to filibuster any bill granting immunity to the carriers.
"For the last six years, the telecom companies have been spying on their customers without warrants," Dodd said Dec. 16. "If this [immunity] is passed, we'll never really know what they did."
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.