Senate Kills Telco Immunity
- From: Curly Surmudgeon <Curly.is.not@xxxxxxxx>
- Date: Mon, 28 Jan 2008 17:54:30 -0800
Telco immunity stalled: Senate blocks key vote
By Ryan Paul | Published: January 28, 2008 - 06:07PM CT
The increasingly tangled debate over federal surveillance powers reached a
new milestone today when a Republican cloture motion failed to pass after
receiving only 48 of the required 60 votes. If the cloture motion had
passed, it would have blocked all further attempts to remove controversial
telecom immunity provisions from a Senate intelligence committee
surveillance bill by forcing an immediate vote on the bill itself. As it
stands, the issue of retroactive immunity for telecoms who helped the NSA
spy on Americans can now come to the floor for a full debate. A second
cloture motion--filed by Congressional Democrats in an effort to force
immediate vote on a 30 day extension to the Protect America Act--also
failed to pass.
This controversy erupted only days before the scheduled expiration of the
Protect America Act, a temporary surveillance bill that was enacted six
months ago in response to a secret ruling from the Foreign Intelligence
Surveillance Court (FISC) that reportedly imposed limitations on
warrantless intelligence gathering operations. The Protect America Act
enables the executive branch and some of its direct subordinates to
authorize warrantless surveillance and interception of communications
between individuals "reasonably believed" to be outside of the United
States. The Bush administration characterizes the Protect America Act as a
modernization of the Foreign Intelligence Surveillance Act of 1978 (FISA)
and has been lobbying to make it permanent. Critics say the act broadly
expanded federal surveillance power while diminishing judicial oversight.
Establishing a replacement for the Protect America Act has proven to be a
serious challenge for Congress, which is bitterly divided on the issue of
retroactive immunity. The Bush administration argues that the
telecommunications companies that cooperated with federal law enforcement
agencies in the potentially illegal warrantless surveillance program
should be granted broad retroactive immunity so that the legality of their
participation cannot be challenged in courts. The administration has vowed
to veto any surveillance bill that does not include retroactive immunity
grants and contends that companies which collaborated with the government
in good faith should not be held accountable for actions that fall afoul
of the Communications Act and other laws that prohibit disclosure or
provision of access to customer network information. Critics argue that
the federal government should not be permitted to elevate the
telecommunications companies above the rule of law in blatant disregard
for fundamental civil liberties.
Two competing surveillance bills emerged in the Senate, one from the
intelligence committee which included retroactive immunity grants and one
from the judiciary committee, which did not include retroactive immunity
grants. Procedural conflicts caused the judiciary committee version of the
bill to die, which left only the controversial intelligence committee
version. In response, Senator Chris Dodd threatened to filibuster,
demanding that the telecommunications companies be held accountable for
potentially unlawful activity.
As the controversy unfolded, attempts to add additional provisions and
amendments to the intelligence committee version of the bill were blocked
at almost every turn. Republican senate minority leader Mitch McConnell
filed for cloture on Friday in an attempt to end all further discussion.
Cloture, which can only pass with support from three fifths of the Senate,
is a procedural mechanism that allows the legislative body to terminate
debate, bypass filibusters, and move directly to a vote on a bill. If the
cloture vote had passed, the Senate would have been forced to vote on the
intelligence committee's version of the bill and would not have had
additional time to discuss potential changes or amendments. Democrats call
for 30-day extension
Senate Democrats want to extend the expiring Protect America Act by 30
days in order to facilitate a more balanced, bipartisan compromise on the
new surveillance legislation. Bush has vowed to veto any temporary
extension and accuses Congress of endangering the country by delaying
passage of permanent surveillance legislation. Congressional Democrats
shot back by pointing out that vetoing a 30 day extension would leave
nothing at all in place after the expiration of the Protect America Act, a
move that Senate majority leader Harry Reid has described as "shamefully
irresponsible." The failure of the second cloture motion today prevented
immediate vote in the Senate on a 30 day extension, which means that the
Protect America Act will probably expire. A vote on a new 30 day extension
is expected to take place in the house tomorrow, which means that the
issue will soon be back before the Senate.
The Republican effort to block the 30 day extension is puzzling, because
the Bush administration and Senate Republicans have frequently insisted
over the past few weeks that the absence of the Protect America Act would
leave the country in severe danger. Efforts to block the extension are
likely a strong-arm tactic aimed at forcing passage of the unmodified
intelligence committee version of the bill. The Bush administration
wrongly believed that Senate Democrats would sooner accept any
provisions--including the controversial telecom immunity grants--rather
than allow the surveillance legislation to lapse and expire with nothing
to replace it.
Critics of the surveillance program have been calling for the mainstream
Democrat presidential candidates to stand with Chris Dodd and vigorously
attempt to block the telecom immunity provisions. Hillary Clinton and
Barak Obama both voted against the Republican cloture motion today.
Despite the risk of angering surveillance supporters in her moderate base,
Clinton reaffirmed her opposition to the immunity grants in a statement to
liberal blog Firedoglake today. "[T]he bill under consideration gives
telecommunication companies blanket retroactive immunity for their alleged
cooperation in the administration's warrantless wiretapping program,"
Clinton wrote. "I continue to believe that a grant of retroactive immunity
is wrong, and I have cosponsored Senator Dodd's amendment to remove that
provision from the bill."
McConnell's effort to block all amendments to the intelligence committee's
version of the bill even angered some Senate Republicans, including
Senator Arlen Specter, who voted against the cloture motion. Specter had
proposed an amendment that, instead of granting blanket retroactive
immunity, would have substituted government lawyers during court
proceedings that evaluate the legality of the telecom company involvement
in federal surveillance programs. "There has been very little time spent
on this very important subject in this body and when you have a matter of
the importance of retroactive immunity where you're going to shut off the
courts of the United States from hearing cases that are already pending
there ought to be time for consideration of amendments like the one which
Senator Whitehouse and I have offered to substitute the United States
government," said Specter according to a transcript of the Senator's
statements on the floor that was published by the site TPM Muckraker. "And
the purpose of our amendment is to comport with the basic Constitutional
provision of separation of powers which is the cornerstone of the
constitution and we have found regrettably that it has been inadequate to
have Congressional supervision, Congressional oversight because of its
ineffectiveness." Implications for ongoing surveillance efforts
Response to the failure to pass the cloture motion has been somewhat
hyperbolic. Candidates from both major political parties paint the
imminent expiration of the Protect America Act as a deadly disaster for
intelligence gathering, and each side blames the other. Ultimately,
rhetoric from both major political parties about the significance of the
Protect America Act's expiration is overblown. Even after the act expires,
ongoing surveillance activities that were authorized by the act will be
permitted to continue for another year. New surveillance activities will
have to go through the standard warrant-based FISA process, which is still
gives federal law enforcement agencies plenty of flexibility by permitting
warrants to be obtained after surveillance has already been initiated
under certain circumstances.
The legality of the government's surveillance program remains in dispute
because the FCC has declined to investigate, the telecom companies have
refused to disclose information about the program to Congress, and the
FISC ruling that allegedly relates to the legality of the program is
classified. The current Congressional deadlock indicates that the debate
over telecom immunity will continue, which means that the potential still
remains for the courts to judge, in the open, whether or not the telecom
companies violated the law by assisting with the warrantless surveillance.
http://arstechnica.com/news.ars/post/20080128-senate-blocks-vote-on-surveillance-bill-that-would-grant-telecom-immunity.html
-- Regards, Curly
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Time to dust off Madam Guillotine
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