In an editorial last Sunday, “Dont’ squeeze the telecoms, ” The Washington Times beat us to the topic of S. 1725, the Retroactive Immunity Repeal Act, introduced by Sen. Chris Dodd (D-CT) and three other Democratic Senators on September 29.

[They] are reopening a fight to make telecommunications companies liable for trillions of dollars for complying with a presidential directive to assist in a “warrantless surveillance” program against suspected terrorists. This has negative consequences for public safety, for the already staggering economy and for the cause of basic fairness and justice.

Even though the Senate just last year – after many months of debate – gave immunity to the telecoms for participating in the program, some senators want to take immunity away.

The Times regards the legislation as typical Senatorial solicitousness toward trial lawyer campaign contributors, since vitiating immunity  would revive the 46 lawsuits against the companies dismissed in June. (For more history, see our Friday post, “FISA Update: Civil Immunity? No, We Changed Our Minds.”) We tend to think the proposed policies derives more from civil libertarian absolutism and a distrust of any government surveillance; since these policies are generally unpopular and cannot be enacted in Congress, some turn to the courts to achieve the same ends.

Whatever the case, as the Times contends, removing immunity is wrong in terms of “basic fairness and justice.” It’s akin to reopening a case despite the statute of limitations having expired, or an ex post facto prosecution. The Times concludes:

The Senate last year granted immunity only after instituting a careful series of safeguards for civil liberties. There’s no need to reopen that careful compromise just for the sake of a few dozen wealthy lawyers trying to get still wealthier – especially when it would come at the expense of the nation’s economic health and safety.

UPDATE (Sunday 11:15 a.m.): Sen. Russell Feingold (D-WI), one of the bill’s cosponsors, submitted and then withdraw an amendment last week during the Judiciary Committee’s markup of the Patriot Act extension. His amendment would have re-opened the FISA debate by banning bulk collection of data; he quickly withdrew it, leaving the impression he was just making a point.

From the Washington Times, a report that Senator Kit Bond (R-MO) will not block the nomination of Eric Holder to be attorney general because of assurances Holder gave that the Obama Administration will not prosecute intelligence officers or Bush appointees for pursuing “enhanced interrogations.”

Mr. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits — removing another potential sticking point among GOP senators.

Guaranteeing civil immunity for the telecommunications companies that assisted in what they understood to be lawful surveillance of foreign communication was necessary for enactment last year of the FISA Amendments Act, clear recognition that the private sector should not be punished for assisting authorities in preventing terrorists from blowing up Americans. See earlier posts.

The comments have prompted some dancing from Holder’s camp and supporters, but we regard Senator Bond as reliable on intelligence matters, always.

(Hat tip: Andy McCarthy.)

Senator Christopher “Kit” Bond (R-MO) made the announcement in remarks today before the Missouri General Assembly, saying as the state’s former youngest governor, he chooses not to seek to become its oldest Senator.

On the Senate Intelligence Committee, Senator Bond worked tirelessly during the debate over the renewal of the FISA surveillance authority, defending the ability to conduct legal, necessary surveillance of foreign terrorists. We especially appreciated his vigorous defense of civil immunity for the telecommunication companies that assisted in legitimate requests to monitor foreign-based communications; Senator Bond recognized the importance of not punishing the private sector through lawsuits designed that would undermine national security while rewarding trial lawyers.

From Bond’s news release:

“In a world today where enemies are real – the kind who behead others based on their religion – it is important to remember there is a lot of real estate between a political opponent and a true enemy,” said Bond. “Our cause is bigger than ourselves. Events in the world and threats will continue to challenge us in significant ways.”

Just so.

There are still two years to go in the Senator’s term, and as a member of the Senate and Environmental Works Committee, he definitely has wisdom and experience to offer in the upcoming debate over transportation and infrastructure issues.

Good luck, Senator, and thank you.

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.

Upon President Bush’s signing of H.R. 6304, the ACLU immediately filed suit in U.S. District Court for the Southern District of New York, seeking a court order to declare the law unconstitutional and stop it cold. The ACLU’s news release is here. The actual complaint in Amnesty v. McDonnell is available here.

We don’t intend to follow this aspect of the FISA debate because it’s the aggrieved versus government and the issue of civil immunity for the private sector is not raised. (As this New York Sun story notes.) Perhaps that side of the litigation will be handled by the Electronic Frontier Foundation, which for now is just protesting the new law in order to raise money.

Although, the congeries joining the ACLU in its suit is interesting and colorful.

The SEIU, eh? They’re just so busy with everything these days.

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.

 With more and more news accounts again today misleadingly referring to “domestic spying program,” it’s worth turning, again, to Andrew C. McCarthy, a former federal prosecutor for the real history and legal context to the FISA debate. He notes that federal courts have consistently held that presidents maintained constitutional authority to conduct warrantless monitoring of hostile foreign agents, and both President Carter and President Clinton operated with that authority. And again, the program is of foreign surveillance.

From “Finally, a Surveillance Pass“:

The Constitution permits warrantless searches in exigencies far less consequential than protecting the nation against foreign attack. Indeed, highly intrusive searches of not only property (including computers with stored email) but also of American citizens crossing our borders have long been routine. Moreover, in marked contrast to Watergate era domestic spying abuses, the Bush administration briefed the relevant congressional leaders of both parties throughout the NSA program’s duration.

None of that mattered to privacy extremists and anti-Bush activists. Once the program was exposed, they slandered a vital effort to safeguard the nation as a “domestic spying” regime that targeted ordinary, law-abiding Americans. Their allies in Congress didn’t dare try to shut the program down, though, because they well knew those ordinary, law-abiding Americans — Americans who understood that 9/11 happened precisely because overseas terror masters used today’s communications networks to guide the activities of jihadists they’d embedded in our midst — want our intelligence community to conduct aggressive surveillance.

That, however, did not chagrin opponents. They did what they always do when democratic means are unpromising: they marched into court. And when suing the government proved frustrating because of standing requirements and state-secrets restrictions, they simply sued the telecoms.

Read the whole thing.

Reaction and excerpts from statements and news releases on the Senate passage Wednesday of H.R. 6304, the FISA Amendments Act.

• President Bush’s statement, “President Bush Pleased by Passage of FISA Reform Legislation“: “This bill will help our intelligence professionals learn who the terrorists are talking to, what they’re saying, and what they’re planning. It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government. It will uphold our most solemn obligation as officials of the federal government to protect the American people.”

• Sen. Jay Rockefeller news release, “Rockefeller Calls Final Pasage of New FISA Law Critical for National Security“: “Far too often, national security issues have been sidelined or delayed because of accusations and attempts to score political points. That’s what makes today so remarkable. Both sides have come together for the sake of national security and passed a bill that will modernize the nation’s surveillance laws so that they are effective and relevant in the 21st Century.

• Sen. Kit Bond news release, “Bond hails Senate passage of surveillance bill“:  Bond praised his colleagues for rejecting the misinformation spread by left-wing fringe groups like Moveon.org and instead putting our intelligence community back in the business of listening in on foreign terrorist in foreign countries.  Before the final vote, the Senate again rejected attempts to kill the terrorist tracking program by stripping civil liability protection for telecommunications providers.  Bond stressed that it is only right to give these patriotic companies who assisted the government in the aftermath of the 9-11 attacks protection from frivolous law suits.  Also, civil liability protection is critical to the future cooperation of our private partners, without whom the terrorist surveillance program could not operate.

• ACLU news release, “Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies“: “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.” 

• Electronic Frontier Foundation news release, “Senate Joins House in Caving to White House Immunity Demands…Telecoms Let Off the Hook for Illegal Spying – For Now”: “”We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president’s illegal surveillance is not over,” said EFF Senior Staff Attorney Kurt Opsahl. “Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”

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.)