Compromise FISA bill in US House could lead to telco immunity

A new draft of foreign intelligence legislation to be debated tomorrow could give the President what he's been seeking: acknowledgment of his authority to declare US telcos immune from prosecution for aiding anti-terrorism investigations.

Multiple news sources in Washington are reporting that a deal has been worked out between House Majority Leader Steny Hoyer (D - Md.) and the White House, on compromise language for legislation regarding a hardening of federal law regarding warrantless surveillance. Though drafts of this compromise language have yet to be made public, it's widely believed that a mechanism may be put in place for US telecommunications companies to eventually be granted immunity for having cooperated with the White House in anti-terrorism investigations since 9/11/2001, which may have been contrary to US law at the time.

This morning, the daily Capitol publication The Hill reported that Rep. Hoyer told reporters debate on new Foreign Intelligence Surveillance Act (FISA) legislation would begin on Friday, and that supporting members should expect not to have everything they had in prior drafts. Hoyer did not go into detail over what would be missing, though reporters covering the White House and Capitol Hill have ably made intelligent speculation. Hoyer's office has yet to release an official statement.

However, a draft of legislation to be considered tomorrow appeared mid-afternoon on Rep. Hoyer's Web site (PDF available here). In it is extensively modified language that borrows its initial phraseology from a pro-telco draft previously approved by the Senate, and also passed by the House in March. It starts by stating that no individual shall bring cause against a person (note, not a corporate entity) for providing assistance to the intelligence community.

But then, the new language says such a case can only be dismissed if the Attorney General can show in district court that such assistance was provided with just cause proving that the person was authorized to provide that assistance, or whether that assistance was "in connection with an intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States."

This clause may have been written in order to allay fears that intelligence operations of any kind and scale may be declared authorized simply because they took place in the post-9/11 timeframe, even if, in fact, they had nothing to do with 9/11 or terrorism.

If the disclosure of that information may violate national security, the draft continues, then conceivably the court may rule upon ways to limit its public dissemination. Once that's done, the court may then hear evidence from the Justice Dept. that the President gave authorization to that defendant, and that such authorization was "determined to be lawful" at the time it was granted -- although it isn't stated which party would have made that determination. Theoretically, it could be the Justice Dept. itself.

This afternoon, Washington Monthly blogger Kevin Drum wrote (via CBS News) that he foresees the possibility that each case against telcos brought before the FISA court would effectively be determined on the basis of whether the President's office assured telcos of immunity prior to their cooperation, and if they said they were, immunity would presume to have been granted then. Thus, he feels, each FISA court case may serve as a kind of smokescreen formality to an outright grant of immunity.

On his Washington Monthly blog, Drum wrote, "So that's that. Not even a fig leaf. If the president requested it and the [Attorney General] certified it was legal, then telecom immunity is absolute. Some compromise. Neville Chamberlain would be proud."

The American Civil Liberties Union this morning lent its voice to the dissent. In a statement, Washington legislative office director Caroline Frederickson wrote, "The court review is mere window-dressing -- all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole -- 'exigent' circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

Even if the bill passes the House, it will be met with some resistance in the Senate, including from Sen. Patrick Leahy (D - Vt.), who chairs the powerful Judiciary Committee. On the Senate floor this morning, Sen. Leahy remarked, "I have said since the beginning of this debate that I would oppose a bill that did not provide accountability for this administration's six years of illegal, warrantless wiretapping. This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program. Therefore, it lacks accountability measures that I believe are crucial. My interest is not in harming telecommunications carriers. I would have supported indemnification by the government or substitution of the government for them in these lawsuits. But for me, there must be accountability."

BetaNews' legislative issues stories all this week are dedicated to the life and memory of Tim Russert, NBC News Washington Bureau Chief. Donations in his honor may be made to Catholic Charities USA.