As FISA nears toward vote, Feingold warns against immunity

David Edwards and Nick Juliano
Raw Story
Tuesday, July 8, 2008

While the final result of what critics call a flawed surveillance bill is all-but-ordained, Sen. Russ Feingold (D-WI) is sticking to his fight to convince colleagues not to retroactively eliminate any consequences for participating in President Bush’s warrantless wiretapping program, which was conducted outside of existing law.

“This immunity provision doesn’t just allow telephone companies off the hook. It will also make it that much harder to get at the core issue that I’ve been raising since December 2005, which is that the president broke the law and should be held accountable,” Feingold said on the Senate floor Tuesday. “When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program.”

He noted that judges who are considering the warrantless spying program have rebuked the Bush administration several times, and that most Senators continue to be unaware of exactly what the program included. Only members of the Judiciary and Intelligence committees, both of which Feingold is a member, have seen classified documents fully explaining the warrantless wiretapping, which Bush dubbed his Terrorist Surveillance Program.

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“We’re considering granting immunity when roughly 70 members of the Senate still have not been briefed on the president’s wiretapping program,” he said. “The vast majority of this body still does not even know what we’re being asked to grant immunity for.”

Feingold was speaking in favor of an amendment he is co-sponsoring with Sen. Chris Dodd (D-CT) to strip a grant of retroactive immunity from an update to the Foreign Intelligence Surveillance Act.

The two senators succeeded in delaying a vote on FISA that had been scheduled for last month until after the Independence Day recess. Originally scheduled for Tuesday, vote on the amendments and final bill have been delayed another day so senators can attend the funeral for former North Carolina Senator Jesse Helms, who died last week.

When the Senate debated another FISA bill earlier this year, a similar Feingold-Dodd amendment received just 31 votes; it is not expected to be adopted this time around either.

Sens. Arlen Specter (R-PA) and Jeff Bingaman (D-NM) have introduced their own amendments to modify the immunity provision. Specter would let the court decide not to grant immunity if it decides the NSA’s warrantless spying was unconstitutional; Bingaman would delay a congressional decision on immunity until Congress receives reports from the Justice Department, NSA and other Inspectors General on the warrantless wiretapping.

Because of procedural rules worked out by Senate leadership those amendments would each need 60 votes to pass, meaning their success also is unlikely.

President Bush also has promised to veto any FISA update that does not include an unfettered grant of immunity to telecommunications companies like Verizon and AT&T, which are defendants in some 40 lawsuits alleging they violated customers’ privacy. The Electronic Frontier Foundation, which is representing plaintiffs in some of those suits, accused Bush of ignoring the need to improve surveillance mechanisms.

“The Bush Administration is willing to veto the legislation and forgo these tools unless the telecom immunity is given effect immediately,” wrote Kurt Opsahl on EFF’s blog. “None of this is as important as immediate immunity for the telecommunications carriers. Even if the President gets an unprecedented expansion of government surveillance power, and the bill merely delays telecom immunity until Congress has more information, this, Bush contends, is not better than continued surveillance under the current version of FISA.”

This video is from C-SPAN 2, broadcast July 8, 2008.

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