GOP Fails to Cut Off Telco Immunity Debate

With FISA expiring Feb. 1, the Senate seeks a compromise on carriers' role in Bush's domestic spying program. 

Democrats defeated an effort Jan. 28 to cut off debate on the Foreign Intelligence Surveillance Act, which includes provisions to grant telecommunications carriers retroactive immunity for their alleged participation in President Bush's warrantless domestic spying program.

Republicans had hoped to curtail further amendments on the legislation aimed at stripping out the telco immunity language. President Bush has vowed to veto the bill if it does not contain immunity for the telecoms.

"The identification of any company that may or may not have cooperated with the government is highly, highly classified information," Sen. Orrin Hatch, R-Utah, said during the floor debate. "Our security is very dependent on the cooperation of the telecoms."

The immunity issue is tied to a renewal of FISA (Foreign Intelligence Surveillance Act), which expires Feb. 1. 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 rely on the voluntary assistance of the telecoms," Hatch said. "They acted on assurances from the highest levels government.

Verizon, AT&T and Qwest 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.

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."

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.