Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government’s domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources. Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.
It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.
Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.
Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government’s procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years, Democratic congressional officials said.
If the surveillance was truly unconstitutional, does Congress even possess the power to grant immunity? To do so might exceed their limited Constitutional authority. However, even if that’s true, this will make cases much, much harder to win.