Surveillance, Immunity and News Coverage

By October 23, 2007Briefly Legal, Communications

The Washington Post has a story today on the continuing disagreements over the foreign surveillance bill, which involves conflict not only over national intelligence controversy but legal immunity for the telecom companies. The Post helps keep controversy bubbling, focusing on objections to the Senate Intelligence Committee agreeing to grant the companies immunity from lawsuits steming from their compliance with Administration requests to monitor telecommunications by foreign terrorism suspects.

Senate Judiciary Committee members yesterday angrily accused the White House of allowing the Senate Intelligence Committee to review documents on its warrantless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits.

Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the ranking Republican, said any such agreement would be “unacceptable,” signaling that legislation granting immunity to certain telecom carriers could run into trouble. Leahy and Specter demanded that the documents, which were provided only to the Intelligence Committee, be turned over to the Judiciary Committee as well.

OK, except an administration spokesman denies it:

Tony Fratto, a White House spokesman, said yesterday that what the White House did was “not exactly” a quid pro quo but that the intelligence panel “expected to legislate on the liability” and so “we’ve been accommodative on sharing information.”

Boy, that’s some selective editing. Why not throw in an ellipsis or two for good measure?

In addition, a Senate aide says no, there’s no quid pro quo.

All this appears to be a typical legislative turf battle over who gets the power over the surveillance bills, revolving around what constitutes a “quid” versus “quo.” We don’t dismiss legislative prerogatives at all, but seems to us national security wins here.

Senator Kit Bond (R-MO) spoke to some bloggers yesterday, returning to the essential point that this legislation is about effective intelligence in the fight against terrorists who plot to kill us. He noted elements left out of the Post’s story today: The Intelligence Committee voted 13-2 to approve the new Foreign Intelligence Surveillance Act language, with Chairman Jay Rockefeller and Bond both arguing for its passage. That’s 13-2, bipartisan!

As for the retroactive immunity question — and about 40 lawsuits were pending against the telecom companies — Bond made a point we hadn’t considered (along with the others we had): If you allow the lawsuits to go ahead, years of litigation follows that will reveal critical information about U.S. intelligence operations.

Turf or terrorism….

Here’s the Rockefeller/Bond news release from last Thursday. And the Post editorializes today demanding more information from the Administration, even though the Post endorses immunity.

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