Telecoms as Trojan Horses

The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency’s warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats’ best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.

House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn’t protect those companies, and granting them immunity would effectively end the lawsuits against them.

The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA’s warrantless activities, called the suits “perhaps the only avenue that exists for an outside review of the government’s program, and an honest assessment of its legal arguments.”

Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits “would likely prevent courts from ruling on the president’s illegal warrantless wiretapping program.” He emphasized, “This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all.”

Most Senate Republicans support unconditional immunity — and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.

Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don’t want to see the telecoms put out of business because of their role in it. But they’re also not prepared to let the telecoms off the hook completely.

As a Judiciary Committee staffer told National Journal, Leahy “doesn’t support full, retroactive immunity but also doesn’t want to see these companies bankrupted due to the administration’s actions.”

Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn’t be “held hostage to costly litigation in what is essentially a complaint about administration activities.” The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, “The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits.”

Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate’s version, if the latter chamber can come to some consensus that doesn’t allow blanket immunity. Senators are haggling over whether something less than immunity — “accountability” for the companies, some have called it — would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration’s culpability in court.

That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity “would carry the day” when it came time to finalizing a FISA renewal.

Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.

In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members “showed a willingness” to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. “Because they were willing to do that, we were willing to show them some of the documents that they asked to see.” The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.

A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president’s blessing.

That conclusion has formed the basis of most committee members’ thinking on the immunity question. “There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group,” the aide said.

In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The “extraordinary nature” of the period following the 9/11 attacks, coupled with the administration’s assurances that new intelligence activities were designed to “detect and prevent the next terrorist attack,” convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.

“This immunity provision is not the broad and vague immunity sought by the administration,” Rockefeller wrote in additional comments in the report. It “does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings.” The panel’s provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.

“The committee did not endorse the immunity provision lightly,” Rockefeller continued. “I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program.”

The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.

Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee’s ranking member, to substitute the government for the companies as the defendant in the civil cases.

At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which “there would still be immunity, but the government would be responsible for whatever damages, if any, were offered.” Minority Leader Mitch McConnell, R-Ky., signaled Republicans’ opposition to that approach — “Taxpayers shouldn’t have to foot the bill,” he said — which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they’ve ever been in the two years since the NSA program was publicly exposed.

Published in National Journal