Four Senators recently introduced a bill that would resurrect litigation against U.S. telecom companies that complied with U.S. government orders to assist in electronic surveillance of suspected terrorists overseas. The bill sends a terrible message that legal immunity, once established, can still be taken away by Congress in the pursuit of political goals.  The legislation also reminds private citizens who want to help fights terrorism that they should expect to be sued for their trouble.

Sen. Chris Dodd (D-CT) introduced S. 1725, the Retroactive Immunity Repeal Act, on September 29 joined by Sens. Feingold, Leahy and Merkley. The bill would “remove retroactive immunity protection for electronic communications service providers that participated in the Terrorist Surveillance Program and for other purposes.” (Senators’ news release.) Vitiating legally established immunity is disturbing in any context, but in this case, it’s especially troubling because it would allow the continuation of legal harassment of good corporate citizens.

The Senators are reviving a debate settled in 2008 when Congress passed the FISA Amendments Act, H.R. 6304, to extend the federal authority (Foreign Intelligence Surveillance Act, or FISA) to conduct surveillance of overseas electronic communications. These communications — phone calls, text messages, etc. — may have had a U.S. nexus, i.e., crossing through U.S. network or involving foreigners calling into the United States to speak to a non-citizen.  However, as applied to overseas communications, the Justice Department held that this surveillance did not require a judicial warrant; passage of the FISA Amendments reaffirmed that position.

A key issue in the FISA reauthorization was whether civil immunity should be granted to telecommunications companies that complied with federal orders to assist in the surveillance.  Lawmakers supported granting civil immunity in the wake of the September 11 terrorism attacks, concluding that companies should not be punished for helping to stop terrorism, especially when the companies are following what they understand to be legal orders. (continue reading…)

San Francisco Chronicle, “Telecom immunity upheld as judge tosses suits“:

A federal judge on Wednesday upheld an immunity law for telecommunications companies and dismissed dozens of lawsuits by customers who accused AT&T and other carriers of collaborating in illegal government wiretapping.

The law, pushed through Congress last year by President George W. Bush, validly authorized the attorney general to protect phone companies from liability without having to publicly disclose whether a company had actually allowed the government to eavesdrop on its customers, said Chief U.S. District Judge Vaughn Walker of San Francisco.

Hours later, however, Walker rejected the Obama administration’s attempt to sidetrack another suit challenging the legality of Bush’s electronic surveillance program and scheduled a hearing for Sept. 1.

The law, the FISA Amendments Act, passed through Congress last year with strong bipartisan support after thorough debate. Critics of the Administration’s foreign policy had targeted the telecommunications companies in the courts as a tactic in their attack against U.S. surveillance practices. The law granted civil immunity to the telecoms if they demonstrated they were following an official government request to assist in the surveillance.*

In passing the law that led to Judge Walker’s ruling, Congress affirmed the important principle that private companies should not be punished for acting in good faith when following legitimate government requests for assistance in defending the nation from terrorist attacks. Good corporate citizenship must not be an invitation for activists and trial lawyers to sue private parties as proxies in foreign policy and national security disputes.

UPDATE (noon): Judge Walker’s ruling is available here, posted by the Electronic Frontier Foundation. Of course, the predictable reaction, “EFF and ACLU Planning to Appeal Dismissal of Dozens of Spying Cases”

*The EFF and ACLU speak in terms of surveillance of U.S. citizens, but in fact the targeted surveillance was overseas communications and communications among non-U.S. citizens.

The FISA Amendments Act, H.R. 6304, signed into law in July is beginning to work its intended effect on lawsuits against the telecommunication companies that assisted in government monitoring of foreign electronic communications after the terrorist attacks of September 11, 2001. The legislation provided retroactive civil immunity to the telecoms, provided they could demonstrate they were acting on instruction from federal authorities.

Today, the 9th U.S. Circuit Court of Appeals sent the most prominent of the anti-telecom lawsuits, the class-action Hepting v. AT&T, back to district court. According to a report in Wired, the order simply stated:

In light of the FISA Amendments Act of 2008, Pub. L. No. 10-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

Presumably now AT&T will provide the needed documentation and District Judge Vaughn Walker will dismiss the lawsuit.

As Hans Bader of the Competitive Enterprise Institute discusses today at the OpenMarkets.org blog, the granting of retroactive civil immunity is clearly constitutional. It’s also a matter of good public policy: Punishing private companies for legally assisting in surveillance of America’s enemies would chill further assistance. And it’s certainly not a good idea to reward people — in this case, trial lawyers, privacy absolutists and leftist opponents of a strong national defense — who pursue policy disagreements in the courts, attacking private enterprise in the process.

Previous posts here.

President Bush signed H.R. 6304, the FISA Amendments Act, into law this afternoon in the Rose Garden. His remarks are here.

An accurate and quick summary from CQ Politics.

In the FISA debate, Sen. Orrin Hatch (R-UT) has been a clear and consistent speaker on the importance of providing immunity to telecommunications companies that assisted in surveillance of foreign communications. His remarks today on the Senate floor made the case in as straight-forward of way as we’ve seen, and he also punched holes in the more conspiratorial arguments that comes from the left.

From his prepared remarks:

It’s very simple – Congress should not condone oversight through litigation. The lawsuits seize on the President’s brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn’t exist. Yet we consistently hear as justification for the apparent paranoia that some wiretaps were warrantless. But lest we forget, the 4th Amendment does not proscribe warrantless searches, it proscribes unreasonable searches.

The fact is the President created an early warning system to prevent future attacks;
essentially a terrorist smoke detector. But rather than appreciate the protection it offered,
critics rushed to pull out the batteries so that it couldn’t work. My feelings of admiration
and respect for the companies who did their part to defend America are well known. As
I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves
a round of applause and a helping hand, not a slap in the face and a kick to the gut.

As an antidote to the pyretic claims about the police state, the Senator remarks:

In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government? Can any of the plaintiffs show that they are “aggrieved persons” under the definition of FISA? The answer to both questions is no. Rather, many of the lawsuits utilize the following logic: I have long distance service, so I am going to sue because I think you listened to my calls. Even though they have no proof; even though the government has more important things to do than listen to their random phone calls, they push on in their desire to justify their view of self importance and irrational belief in government conspiracy. I don’t want to bruise anyone’s ego, but if Al Qaeda is not on your speed dial the government is probably not interested in you.

And in the litigation that follows, either intelligence and national security secrets are revealed, or the companies cannot defend themselves.

A very good summary of the case for immunity and passage of H.R. 6304. Thanks, Senator.

Voting on the first of three amendments, the Feingold-Dodd amendment, to H.R. 6304, has started. Sixty votes are needed for passage of the amendment, which would strip out the immunity for telecom companies.

The votes will stack up in order.

UPDATE (12:17 p.m.): The Feingold-Dodd amendments fails, 32-66. We’ll post the roll call when it becomes available.  Roll call vote here.

Next up, the Specter amendment.

UPDATE (12:45 p.m.): Specter amendment falls 37-61. (Roll call vote here.) Now to the Bingaman amendment, with the final vote on the entire bill to occur after 2 p.m.

UPDATE (12:53): Bingaman amendment fails, 42-56. Senate is in recess until 2 p.m. (Roll call vote here.)

The Senate is leaving town today with action still pending on H.R. 6304, the FISA Amendments Act, but a vote planned upon returning after Fourth of July recess. Sen. Dodd (D-CT) says he will propose an amendment to strip out legal immunity for telecom companies. For the explanation of the bill’s provisions, see this floor speech yesterday from Sen. Jay Rockefeller (D-WV), chairman of the Senate Intelligence Committee.

This AP story covers the procedural maneuvering that slowed the bill’s consideration. The delay allows more invoking of the the Declaration of Independence before the vote.

UPDATE (11:40 a.m.): CQ reports the Senate will take up the bill July 8th. Attorney General Mukasey and Director of National Intelligence McConnell sent a letter to Majority Leader Reid yesterday outlining the Administration’s opposition to various amendments — including removal of immunity — saying they would recommend a veto if the current bill’s provisions are undermined.

Andy McCarthy of the Foundation for the Defense of Democracies, one of the few observers to write consisently about the FISA legislation, surveillance and immunity for the telecoms, says H.R. 6304 will pass with the immunity provisions, but the damage has been done. From The Corner:

A litigation climate has been created in which the telecommunications industry would never again comply with a presidential request for warrantless monitoring. The Obama Left, the ACLU, and the Democrats’ trial lawyer benefactors are bent out of shape because the telecoms will receive retroactive immunity this time, so billions in potential liability will vanish (at great savings for Americans to whom the cost would have been passed along). But ultimately, they’ve succeeded in making it highly, highly unlikely a president will be able to carry out warrantless surveillance in the future.

Actually, the Obama Left isn’t that happy with Sen. Obama on FISA.

Sens. Saxby Chamblis (R-GA) and Orrin Hatch (R-UT) had very good floor statements yesterday on the FISA modernization legislation (Congressional Record text here), with Hatch especially clarifying the legal and constitutional differences between warrantless searches and unreasonable search and seizure. Hatch also punched holes in the favorite canard opponents, that the bill excuses a vast sweeping, warrantless surveillance of Americans’ phone calls or e-mails. It’s foreign surveillance, Hatch explains. From S6125:

Domestic spying may sound catchy and mysterious, but it is a completely inaccurate, even misleading, way to describe the TSP terrorist surveillance or FISA modernization. Why don’t we describe them as international spying, which is what they really are? Isn’t that a more accurate description? But I imagine international spying wouldn’t raise the same level of fear and distrust in our Government that some on the left try to foster.

UPDATE: (11 a.m.): White House fact sheet on retroactive immunity.

By a 80-15 vote, the Senate this evening voted to invoke cloture on the motion to proceed to H.R. 6304, the FISA Amendments Act. The threatened filibuster, or at least uproar, turned into a several speeches critical of the legislation.  AP story here.

The 15 opponents were all Democrats. Absent were McCain, Byrd, Kennedy, Clinton, Obama. Sen. Obama commented on the bill in a question period with the media. Not much in the way of trying to remove the telecom immunity.

Indications are that Senate Majority Leader Reid will file cloture on H.R. 6304, the FISA Amendments Act, with a Senate vote to occur Wednesday. A debate has emerged hot and furious among the political left about the decision of Sen. Barack Obama to support the legislation, although he says he’ll try to have the telecom immunity provision removed. Hotline’s Blogometer has the rundown of the reaction to what the Washington Post calls “his most substantive break with the Democratic Party’s base since becoming the presumptive nominee.” Moveon.org, the cash-flush lefty outfit, is urging supporters to contact Obama to urge him to lead a filibuster.

More uproar from the Maine Civil Liberties Union, attacking telephone companies.

And The Washington Times had a good editorial restating the case for telecom immunity in the FISA bill, “A good deal on FISA.”

The most important benefit of the agreement is that it grants retroactive liability protection to telecommunications companies who responded to the federal government’s request for emergency help after September 11. The companies did their patriotic duty: making sure that the U.S. intelligence agencies were able to monitor the telephone calls and faxes of known and suspected terrorists – at a time when there was good reason to worry about a second wave of attacks. However, for doing the right thing, the companies were hit with approximately 40 lawsuits pushed by the ACLU, the Electronic Frontier Foundation and trial-lawyer activists. These lawsuits exposed the telecoms to the possibility of paying billions in damages for helping the government conduct “illegal” warrantless surveillance. But two centuries of American case law demonstrate that the warrant requirement has never been absolute. To cite but one of many exceptions, the president has long been understood to have the “inherent authority” to conduct warrantless searches to obtain foreign intelligence information. This has been recognized by federal appeals courts and was acknowledged in 2002 by the Foreign Intelligence Surveillance Court of Review.

In this context, it would be difficult to imagine a more pernicious message to send to these companies – forcing them to choose between their fiduciary duty to stockholders on the one hand and acting lawfully to help protect their fellow citizens from terrorist attack on the other.