After hours of impassioned debate, the Senate decided late Dec. 17 to delay a vote on granting telecoms immunity for their alleged participation in President Bush's warrantless wiretapping program. Majority Leader Harry Reid said the Senate would next deal with the bill in January.
The immunity issue is tied to a renewal of FISA (the Foreign Intelligence Surveillance Act), which expires Feb. 1. The House refused to retroactively grant immunity Nov. 16 when it approved a FISA revision. The Senate Select Committee on Intelligence approved telco immunity as part of its FISA bill, while the Senate Judiciary Committee voted for no immunity.
Bush has promised to veto any legislation that does not grant immunity to the telephone companies. The White House launched the warrantless surveillance in the aftermath of the Sept. 11, 2001, terrorist attacks.
Under Reid's direction, the Senate first voted to proceed with the Senate Select Committee on Intelligence's version of the bill. After that vote, Sen. Chris Dodd, D-Conn., vowed to filibuster or invoke other legislative delays to stop passage of the bill.
"For the last six years, the telecom companies have been spying on their customers without warrants," Dodd said. "If this [immunity] is passed, we'll never really know what they did."
Verizon, AT&T and Qwest Communications International all contend they relied 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.
"They [telecoms] acted as good citizens and I do not want them to face penalties since they responded to a government request," said Sen. Arlen Specter, R-Penn. Specter has proposed an amendment to the bill that would substitute the government for the telecoms in the many pending civil cases that have been filed against the companies.
Sen. Orrin Hatch, R-Utah, argued that the telephone companies "patriotically adhered" to letters from the Department of Justice that implied the wiretapping orders were approved by the White House. Dodd dismissed that notion, arguing that telephone company attorneys are not "first-year law students. They knew what they were doing."
Sen. Sheldon Whitehouse, D-R.I., said the telephone companies have been put in an "impossible predicament. The government has told them they cannot say one word about this. We have to do something about that."
As the debate raged throughout the afternoon, Reid unsuccessfully attempted to broker a deal. Late in the day, a weary Reid pulled the legislation. "Everyone feels it would be in the best interest of the Senate if we take a look at this when we come back [from the holidays]", Reid said, noting the Senate still has a number of other issues to deal with before adjourning Dec. 21.
Reid also seemed to favor not granting immunity to the telecoms.
"I believe that it is more than appropriate to ask the courts to examine the telephone companies actions and to evaluate whether or not they acted properly," Reid said. "Providing immunity without ever undertaking such an evaluation would send a dangerous signal that the requirements we enact prospectively may be ignored with impunity."
"We applaud Sen. Reid for allowing the full Senate to take the time to carefully consider the dangers of granting amnesty to the phone companies who have blatantly violated their customers' privacy for over six years," EFF Legal Director Cindy Cohn said. "But the biggest hero today is Sen. Dodd, who recognized the profound Constitutional issues at stake in taking this key issue away from the courts, and refused to let it be rammed through the Senate without a fight."