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Telecom immunity in new FISA bill

Bob Moon Jun 19, 2008

Telecom immunity in new FISA bill

Bob Moon Jun 19, 2008


Bob Moon: Congressional and White House negotiators have agreed on what’s being described as the most sweeping rewrite of spy powers in three decades.

The measure pending in the House would expand the government’s powers to spy on communications between the U.S. and overseas. It would also allow the collection of intelligence on matters besides terrorism.

Reporter Eric Lichtblau writes for The New York Times and is on the line with more on this… appreciate you joining us.

Eric Lichtblau: Thanks for having me.

Moon: So they’ve reached an agreement to rewrite the Foreign Intelligence Surveillance Act. What does that mean?

Lichtblau: Well, a couple of things. The biggest sticking point had been the question of whether to give immunity to the telephone companies that had participated in the warrantless wiretapping program that President Bush approved after 9/11. There are some 40 lawsuits now pending — they’re all consolidated in California — and this agreement essentially does give immunity to the telephone companies. There’s some caveats; the government would basically have to certify that it had given proper written requests to the telephone companies, but once that is done then the language of the bill says that those suits shall be promptly dismissed. So it is, in effect, immunity.

Moon: So that apparently gives them at least a court review of sorts?

Lichtblau: It’s a bit of a court review, but it does not really allow the court to really dig into the issue itself of the warrantless wiretapping program. There’s no mechanism for a court to say, “What was this program about? Was this program legal? Should the telephone companies have been playing the role that they did?” It does not get into issues like that, which folks in the civil liberties community had wanted the court to be able to explore. In fact, there are several lawsuits now pending in which the courts had begun to explore those deep issues about the program itself. This bill basically cuts off that sort of avenue and says if there was written certification to the companies, that’s enough.

Moon: I’ve seen this described as a compromise. What’s the compromise?

Lichtblau: Well, there are a couple of different issues. There are some additional safeguards that the Democrats had sought in terms of congressional review, in terms of an investigation by Congress into the President’s NSA wiretapping program. Also it gives the court, the so-called FISA court, which is the secret intelligence court, more of a role at the beginning of the process at looking at what the NSA is doing and the guidelines its using in targeting people for surveillance. So there are some additional safeguards that are built into that process.

Moon: Is this a done deal? Is this going to be approved this way?

Lichtblau: I wouldn’t call it a done deal, no. There are certainly folks on both sides of the issue — liberals in the House, particularly, who think that this is essentially caving in to the White House, and conservatives on the other side who think it puts in too many restrictions and limits the ability of the NSA to get the intelligence it needs. You know, we’ve been down this road three or four times in the last year and a half and every time someone thinks there’s a deal, it comes unraveled.

Moon: Eric Lichtblau is a writer for The New York Times. Thanks for joining us.

Lichtblau: Well, thanks for having me.

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