As the Senate considers legislation to address the president's surveillance powers, the Senate Judiciary Committee registered concern regarding the recent compromise brokered in the Senate Intelligence Committee to grant the telecommunications industry immunity for alleged illegal assistance with the National Security Agency's (NSA) warrantless surveillance of American citizens. Sens. Patrick Leahy (D-VT) and Arlen Specter (R-PA), respectively, chairman and ranking member of the Senate Judiciary Committee, stated that immunity did not appear to be necessary, and that those alleging harm should have their day in court.

As reported in the previous edition of the Watcher, the Senate Intelligence Committee passed the FISA Amendments Act of 2007 (S. 2248) by a vote of 13-2. The bill included provisions that would provide immunity for any telecommunications company that, in response to a request authorized by the president, assisted in counterterrorism operations between Sept. 11, 2001, and Jan. 17, 2007, or if the attorney general certifies the company was not involved in the activities addressed by a particular lawsuit.

To date, approximately 40 lawsuits have been filed involving telecommunications companies allegedly assisting the NSA's warrantless wiretapping program. All of these suits would likely be thrown out if the Senate bill becomes law.

Upset with the blind agreement to grant blanket immunity, OMB Watch and the civil liberties community called for the Senate Judiciary Committee to hold public hearings on the issue before moving forward in considering the legislation. In heeding such advice, the committee held a hearing receiving testimony from, among others, Kenneth Wainstein, Assistant Attorney General at the Department of Justice.

With most of the hearing centering around debates over immunity, Leahy opposed the S. 2248 legislation because of its inclusion of immunity provisions. "The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they'll be given an after-the-fact free pass."

Specter also registered concern with the immunity provisions and argued for granting indemnity to the telecommunications companies involved in assisting the government's warrantless surveillance activity. This would permit the lawsuits to proceed but would hold the government liable for payment of damages. "I doubt very much that the cases will be proved," stated Specter, "but if plaintiffs can prove them, I think they ought to have their day in court."

Wainstein argued that the immunity provisions were necessary because the telecommunications companies were "operating on good faith, on assurances from the government. If there is fault here, it's the fault in the legal analysis and the decisions made by the government." Moreover, Wainstein said, such lawsuits would interfere with the government's ability to cooperate with telecommunications companies in the future by instilling in companies a clear incentive to be risk-averse.

Sen. John D. Rockefeller (D-WV), Chair of the Senate Intelligence Committee, argued similar points in a Washington Post column defending his committee's inclusion of immunity in S. 2248. "Companies are being sued, which is unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future."

Leahy dismissed such arguments for immunity at the Judiciary Committee hearing, explaining that immunity would deprive those allegedly harmed from having their day in court. Leahy fully expects the government will invoke the state secrets privilege for any lawsuits brought against it and thereby get the cases dismissed. This would leave the lawsuits against telecommunications companies as the only opportunity for having the matter heard by courts.

The Senate Judiciary Committee is expected to consider and vote on S. 2248 before the Thanksgiving recess.