The Senate has decided to delay its vote on the surveillance bill and specifically the immunity provision for the telecommunications companies. However, civil libertarians have little reason to celebrate. The telecom lobbyists appear to have the upper hand with some members of the Democratic leadership, which hopes to pass the immunity bill once attention fades in 2008. In an astonishing move, Sen. Diane Feinstein is trying to move the entire matter out of the federal courts and into the secret FISA court. The only value of such a move is to reduce the political fallout and make immunity more likely for the telecom companies.
Despite the overwhelming opposition to immunity among Democrats, Independents, and civil libertarians, the Senate has been quietly working with lobbyists for the industry to find ways to grant immunity. The move would kill over 40 lawsuits by public interest and civil libertarians groups. It would stop the work on judges, who have refused to dismiss these important cases.
Notably, Majority Leader Harry Reid has shown lukewarm support for those like Sen. Dodd, Kennedy, and Feingold opposing immunity. As usual, the Democrats on the Senate Intelligence Committee — led by Sen. Rockefeller — supported the White House in killing the pending and future lawsuits. The Democrats on the Judiciary Committee supported the civil liberties side and denied immunity in their bill. Reid initially moved the pro-telecom Intelligence bill to the floor first and did little to assist his colleagues in moving the pro-civil liberties measure. It was only after a determined campaign from advocates and Democratic colleagues that he relented in allowing both bills to go to the floor — but insisted that the Senate Intelligence bill would be the first legislation. This meant that it would have to be amended. Nevertheless, the filibuster tactic by Sen. Dodd paid off. The heat was too intense for Democrats and Reid decided to pull the legislation in 2008. However, before it was pulled, it was clear that, once again, the Democrats are divided on a fundamental issue of civil liberties.
Feinstein’s proposal is particularly worrisome. She would have the entire matter given to the secret FISA court. Why? Federal courts routinely review secret information given in camera and ex parte by the government. I have been counsel in cases with information classified at this level without the need to removal it to the FISA court. The benefit goes entirely to the telecom companies. First, it would reduce the vulnerability of the companies by reducing the number of judges. It is likely that one or more of these judges will side with the civil liberties groups. This would reduce it to one court with a long conservative, pro-intell record. Second, it would prevent the public and media from witnessing the proceeding — thereby giving these Senators political cover and reducing public backlash. Third, it would reduce the ability of the parties to argue their cases. Private counsel is normally barred from FISA proceedings and the court does not allow for the basic procedures of discovery and adversarial process.
There is no good policy argument for immunity. If the White House is correct and they acted legally, they have nothing to fear. But these Democrats and the White House know that the companies did not act lawfully. Thus, they are struggling to protect the companies for our own courts and our own laws.
The disconnect with voters is extraordinary. As with the torture vote, the fix is in on immunity. The only question is timing. This cynical manipulation of the vote reflects a certain contempt for Democratic voters and a major flaw in our political system. While civil liberties advocates like Sen. Feingold exist in the Senate, there remains a general lack of support for these principles over political expedience.
The telecom vote is similar to the torture vote as a defining moment. Senators need only to trust our legal system and not try to rig the results. As noted by Sen. Kennedy, the Senate should let President Bush veto a national security bill to protect companies from liability. Such an act would put the true motives of this Administration into sharp relief.
The hope among some Democrats is that they will be able to slip in the immunity provision early next year when voters are distracted by other matters. What is clear is that these companies and the White House will prevail absent a change in heart and politics in the Senate.
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