February 13, 2008 - Yesterday, the Senate passed a bill that will allow the Bush Administration to continue to tap into overseas phone calls to look for evidence of terrorism plots. The bill now has to be resolved with a version passed by the House of Representatives three months ago. There are some major differences between the two versions; the largest of which is retroactive immunity for telecommunications companies that helped the government illegally eavesdrop on ordinary American's. The House bill does not contain such a provision.

The White House has been pressuring Congress for months to pass an extension to legislation that allows the NSA to listen in on overseas phone calls. The law had been set to expire at the end of last month but was temporarily extended to allow for new legislation.

But the administration had used the original legislation to do much more than listen to calls involving at least one person not located in the United States. The NSA had worked with a number of the country's largest phone companies to listen in on calls between law abiding Americans that were taking place within our borders. This eavesdropping was illegal and has led to a number of law suits against major telecommunication providers; most notably AT&T.

Despite repeated attempts by the Justice Department to have the telecommunications law suits dismissed, the federal courts have allowed the suits to continue to move forward. If the Senate version of the new legislation were to become law, the courts would have little choice but to throw them out.

Both the Senate and the House versions of the new law would put an end to the practice of NSA spying without a search warrant. The agency would have to go to federal judges presiding over FISA (Foreign Intelligence Surveillance Act) courts. These courts are operate in secret but they are run by actual federal judges and do give the judiciary oversight responsibility.

There is little doubt that the federal government has a need to conduct surveillance against foreign agents abroad and within the United States. Even so, granting retroactive immunity to telecommunications companies that have already broken the law is something that has been opposed by virtually every government watchdog organization in the country.

Passage of a final bill which includes immunity is by no means assured. Democrats in the House of Representatives have shown little tolerance for the President's argument that immunity is needed in order to guarantee the continued participation of the telecommunications companies. But there have been some signs that their cohesion on the matter is beginning to wane. 23 moderate House democrats have now signed a letter in support of immunity.

In the end, if the immunity provision does survive it is likely to face some stiff constitutional challenges in the federal courts. It is not clear that retroactive immunity for unconstitutional searches is constitutional in itself. On the other hand, if the immunity provisions don't survive, the President has threatened to veto the bill.

by Jim Malmberg

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