Republican senator: Should taxpayers pay for illegal spying?
WASHINGTON--Despite demands from President Bush to shield telephone and Internet companies from surveillance-related lawsuits, key U.S. senators are reluctant to offer legal immunity. But they may force taxpayers to pick up the legal tab instead.
Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), the co-chairmen of the Senate Judiciary Committee, said at a hearing here Wednesday that they still don't have enough information to decide whether it's wise to immunize any past assistance by telecommunications providers to a wide swath of U.S. government agencies over the last six years.
That's precisely what would happen, however, if a bill called the the FISA Amendments Act, which passed by a 13-2 vote in a closed-door meeting of the Senate Intelligence Committee a few weeks ago, becomes law. That proposal, which has won some praise from the U.S. Department of Justice, is now being weighed by the Judiciary Committee.
Specter suggested granting "indemnification" to telephone companies who allegedly cooperated with the government's surveillance regimes in violation of federal privacy laws. That would mean lawsuits could go forward, but taxpayers would be responsible for covering any legal expenses or damage awards against the communications companies. Damages could run into the tens of billions of dollars if the suits are successful, according to Senate Intelligence committee estimates.
"If we are to close the courthouse door to some 40 litigants who are now claiming that their privacy has been invaded, it seems to me we are undercutting a major avenue of redress," Specter said.
Leahy, too, voiced reluctance toward granting blanket immunity.
"The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass," Leahy said.
The FISA Amendments Act is the Senate's attempt to overhaul a temporary wiretapping law called the Protect America Act, which was hurriedly passed by Congress in August. That bill broadened the Bush administration's ability to spy on foreign communications routed through the United States without a warrant, which the bill's primarily Democratic critics argue threatens Americans' civil liberties.
The existing law, set to expire on February 1, granted legal immunity to private companies that assist the U.S. government in its electronic surveillance going forward. But the Bush administration has now threatened to veto any proposed renewal of the law that does not shield wiretapping cooperation in the past as well.
Kenneth Wainstein, assistant attorney general for national security at the U.S. Department of Justice, strongly discouraged politicians at Wednesday's hearing from endorsing anything but blanket immunity for the communications companies. He said protecting communications providers from lawsuits is important to national security as a whole because "every little nugget of information that comes out in the course of this litigation helps our enemies."
"Any company that assisted the government in defending our national security deserves our gratitude, not an avalanche of lawsuits," Wainstein said in written testimony.
Indemnification would also be the wrong approach, Wainstein said, because it would still require communications companies to go through the process of litigation. He argued that could potentially inflict damage to their corporate reputations--or even endanger employees working overseas if terrorists or surveillance targets catch wind of the role those companies are playing. Furthermore, he added, forcing the government to foot the companies' legal bills would be an unacceptable burden on American taxpayers.
Sen. Dianne Feinstein (D-Calif.) suggested that perhaps Congress could cap the amount of damages handed out in such cases in an effort to ease the taxpayer burden. "This isn't a mistake made by the taxpayers, it's a mistake by the government," she said.
Leahy grilled Wainstein at length on why retroactive immunity is necessary at all. A report accompanying the Senate Intelligence Committee's approved bill says that at regular intervals between 2001 and early 2007, the Bush administration presented electronic communications providers with letters saying the president or the attorney general had certified the various wiretapping requests as lawful.
Given those letters, "if you feel secure in what you did, why ask for further legislation?" Leahy asked Wainstein. "Why not let the courts deal with the certifications that the president said it was legal?"
"The concern is airing out what the companies did and putting them through the cost, the litigation, the exposure, the difficulty of litigation when they were really just doing something to protect the government," replied Wainstein.
All Democrats present at the hearing questioned the idea of granting immunity, with Sens. Dick Durbin (D-Ill.) and Russ Feingold (D-Wisc.) growing particularly animated.
"Isn't it reasonable to say the company has a statutory obligation to protect my identity and to only give it up for a legitimate, statutorily-recognized purpose?" Durbin asked Wainstein, who responded that he thought all of the companies who have assisted the government "acted out of patriotic duty."
With the exception of Specter, most Republicans on the committee defended the Bush administration's position, asking Wainstein questions intended to tout the importance of surveilling the enemies of the United States at wartime.
"We should be bending over backward to ensure they are protected in that assistance for the national good," said Sen. Jon Kyl (R-Ariz.).
Sen. Jeff Sessions (R-Ala.) said he didn't think the companies should be punished for "doing what their country asked them to do," allowing those who filed lawsuits in the process to discover "everything they can discover about the most top secret program the government has."
surveillance-related lawsuits, fine. Most companies would fold
like a lawn chair when faced with a badge. And if they let them
be sued, the corporations would just pass any costs on to their
customers, and the taxpayers would end up footing the bill in
any event.
But make them allocute to everything they have done so the
American people can see how deep the illegal government
spying program goes.
And then, of course, prosecute those who ordered the illegal activities. (but that's just a pipe dream, it'll never happen)
We really should have done that a LOOOOOONG time ago, and I really don't understand why we haven't yet.
If they violated the law then they should pay the penalties. The only reason the law makers are trying to shield them is because some of them would be entangled in the whole mess and that should come out too.
discredit to the legal profession.
First, it's a cardinal tenet of US law that national security is
securing the integrity of the US Constitution, which, among
other things, requires that all persons be secure in their papers
and effects and from government intrusions into their personal
liberties. It's defense of the Constitution to which the President,
Vice-president, and every US soldier swear an oath. I submit that
the willful compliance of telecoms with an illegal order not
vetted through the nation's apppointed representatives is a
gross subversion of national security, not an assurance of it.
Further, in aiding in the espionage, the telecoms were not doing
what their country asked of them; Wainstein states himself that
the public ought not know the details of what they did or who
asked them to do it. The "country" new nothing at all of the
activity -- and for that matter, only a very small minority of
government personnel had any idea. That's not even disputed.
No indemnification or immunity should be offered to the
telecoms. If they were doing something lawful, then they should
expect that to be affirmed by the court. If they were acting
unlawfully, they should be penalized. The telecoms have lawyers
on retainer and are intimately aware of the FISA laws and
regulations, even if none of the upper management could claim
to grasp the basic concept of ethics. If they have a good case
that they were duped by the department of justice, they should
make that case too. Frankly, if a DOJ employee took it upon him
or herself to engage in the sorts of activity alleged, they should
face prison time.
"First, it's a cardinal tenet of US law that national security is securing the integrity of the US Constitution."
that's supposed to make illegal acts legal???? The wiretapping
without a warrant was illegal - both by the government AND the
phone companies. Why should I have to pick up part of the tab
when someone (rightfully) sues the telcos?
Some other moron said this is all for the good of the people... I
have never felt more unsafe than under this administration. Fear
and patritism have been used over and over in many countries to
make people giv e up their freedom. It's amazing to me how so
many Republicans (and I'm not a Democrat) are nowadays so
into big government intruding into all parts of our lives, when
not so long ago they wanted nothing to do with the government.
And where are the Democrats shooting down these ridiculous
policies? Instead of going after the President when the illegal
wiretapping story broke, they legalized it!And I'm supposed to
vote for those guys instead come next November? Yeah, right!
Isn't it time we get some Senators on the Judiciary Committee who actually believe in letting the Judiciary do it's job?
Let's open the windows, look carefully at what's been going on, and try to begin to repair the damage that we have done to ourselves, the Constitution, and the rest of the world while taking responsibility for what has happened - while setting in place systems that will prevent this from happening again.
The last seven years have been a nightmare.
Anyone against this bill is supporting Al Qaeda and terrorism against the USA.
Anyone against spying is either a criminal or foreign enemy. Government spying against innocents for political purposes of maintaining power of leaders would incite a revolt against tyranical government - that is why we have guns and why the founding fathers gave us the right to jave guns.
More nonsense from the hate America liberals.
now if you ever read your history of the founding father and what they have said in their lifetimes as Americans you should also know the following:
- don't trade liberties for security b/c you will get neither (Benjamin Franklin) - I guess he's a terrorists too b/c he would certainly be opposed to this sort of spying on own citizens
- do not mix religion and government. Right now candidates have to be religious otherwise they are unift to govern apparently. Oh and yeah you have to be Christian. Certainly not what founding fathers had in mind.
- do not ally with other countries
- do not mix business and government
- stay away from factions(you know parties)
learn your history. We didn't give up our rights during cold war and with 10k nukes pointed at us, yet we are giving them away today for few cavemen with knives. pathetic
To try and put it more simply, Abdul was in Brazil and he was calling Mahmud in London. The call was routed through an American switch. Because of this, some moron judges decided that the wire tapping laws were now in effect and demanded that the intelligence services get warrants.
Now I have no problem with getting warrants if the parties are in the States, but I have a big problem if these demands are giving aid to our enemies.
This damned finding has already probably killed several people. Three soldiers were captured and the NSA had to waste 10 hours dealing with an idiot judge in a FISA court. No one knows if the delay cost those men their lives, but it might have.
Get it through your heads people, they aren't looking to use this information to put people in jail. They need it to prevent attacks and to KILL our enemies, the same enemies who want to kill YOU!
Just my $.02
nuff said
If we really want to stop illegal divulging of private information to the government, then the people that ought to be on the hook are the people who asked for the information in the first place. They should *personally* be on the hook. The persons that request information in violation of the law ought to be fired, they should face both civil and criminal charges. If this was private industry, if it weren't the government, that is exactly what would happen. If we don't hold the persons requesting the information responsible, then they get the clear message (and it is true) that they are above the law. That is they single most dangerous thing I can think could happen in any country.
The Telecoms are not the real bad guys here (at least not the root cause), this administration that insists it is above the law is. That's what needs to be addressed. Do so by forcing the Telcom's to talk, the same way other criminal prosecutions use the low level criminals to go after the big dogs.
- No immunity, no indemnification
- by Danny259 October 31, 2007 10:15 PM PDT
- This is sooooo wrong and so stupid.
- Like this Reply to this comment
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(22 Comments)How can Congress even begin to think of making the taxpayer responsible for a choice made by private business executives, a war criminal President, an attorney general that disrespects the constitution and and a vice-president that claim's to be outside the "three branches of government."
Yep, yeah, I just took $5.00 out of my left pocket(as a taxpayer) and put it in my right pocket (minus the lawyer fees..) as a claimant. How does this change the ILLEGAL BEHAVIOR that allowed this to happen?
Somebody's got to go to Nuremberg and hang for this. Authorizing illegal wire-tapping by an officer of the United State (who is SWORN to uphold the Constitution, not drafted mind you, voluntarily chose office and was sworn!) is high treason. As George Bush senior stated, these folks should be hung.
In this case, the responsibility for punitive damages by Telco's should be focused entirely on the CEO, Board members, and share-holders of the company. They made the choice to go along with an illegal wire-tapping operation, for personal profit (see the Qwest testimony regarding what happens when you don't agree). They should stand to loose. Why should the taxpayer bail out their profits? It even goes against the Ronald Reagan Republican myth/ideal of personal responsibility. That's what capitalism is about! That' what I hear every day in the marketplace suckers. Time to swing.
If this money was being paid directly by GWB,the White House lawyers, and the Telco execs. that decided that this was ok, I'd be all for it. but Paying myself from my own tax money (minus lawyer fees) isn't really a "punishment" to anyone but me, and really isn't going to change any behavior. For the record, I was against it. Paraphrasing the bill of rights, no warrant shall be issued, except under "probable cause." To borrow from our new Chief Justice Roberts during his confirmation, "when the constitution speaks broadly, it is to be interpreted broadly, when it speaks specifically it is to be interpreted specifically." The bill of rights speaks specifically on this, no dragnets, you must have probable cause to investigate.
I'm clearly not a "good ol' boy" Republican any more for calling them on this, and it's starting to look like I'm not a Democrat any more either if they go along with this horse-pucky.... What does that make me now...."Insurgent?"