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US House leaders propose compromise on telecom surveillance immunity

[JURIST] Telecommunications companies who have assisted the government in its warrantless surveillance program [JURIST news archive] would not be provided retroactive immunity from prosecution under the latest version of proposed surveillance legislation being considered by the US House of Representatives. The companies, however, would be allowed to present classified evidence in their defense without granting access to plaintiffs. Democratic Party leaders outlined the new proposal [statement, PDF] Tuesday, and said that it could come up for a vote on the House floor as early as Wednesday. The proposal is intended to resolve differences between the House, Senate and the White House on whether to include immunity for telecommunications companies in legislation that will supplement the 1978 Foreign Intelligence Surveillance Act [text]. The Senate passed the FISA Amendments Act [S 2248 materials; JURIST report] in mid-February; the Senate bill would grant telecommunications companies full legal immunity from civil suits for any involvement in wiretapping program between Sept. 11, 2001 and January 2007. The House version [HR 3773 materials; JURIST report], approved in November 2007, does not include the immunity provisions. The Bush administration has urged [JURIST report] the House to adopt the Senate version of the legislation, but House members have been reluctant to accept the proposed immunity grant.

The administration quickly expressed concern [statement, PDF] with the latest House proposal, with the Department of Justice and the Office of the Director of National Intelligence saying Tuesday:

We are concerned with several reported features of the new proposed legislation. First, we understand that the House leadership may introduce a bill that would require prior court approval before allowing surveillance targeting certain foreign terrorists and other national security threats located outside the United States. ...

Second, we understand that the new House bill may not address the issue of providing liability protection for those private-sector firms that helped defend the Nation after the September 11 attacks. Any FISA modernization bill must include such liability protection. Through briefings and documents, we have provided Congress with access to the information that shows that liability protection is the fair and just result. In addition, private party assistance is necessary and critical to ensuring that the Intelligence Community can collect the information needed to protect our country from attack. The Senate Intelligence Committee has stated that "the intelligence community cannot obtain the intelligence it needs without assistance" from electronic communication service providers. The Committee also concluded that "without retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our Nation." Senior intelligence officials also have testified regarding the importance of providing liability protection to such companies for this very reason. Exposing the private sector to continued litigation for assisting in efforts to defend the country understandably makes the private sector much more reluctant to cooperate. Without their cooperation, our efforts to protect the country cannot succeed.

Finally, we understand that there are a number of other provisions in the proposal that indicate it does not provide the needed tools to ensure our national security. ...
US Rep. John Conyers, Jr. (D-MI) and Rep. Selvestre Reyes (D-TX), chairmen of the House Judiciary and Intelligence Committees, respectively, responded [statement]:
The administration, which has refused to even attend negotiation sessions between the House and the Senate, has now apparently launched another round of scare tactics and falsehoods. The American people expect government officials to wrestle with these difficult issues and reach common sense solutions that protect Americans from terrorism and preserve our civil liberties. Unfortunately, the president's advisors seem more inclined to issue "my way or the highway" press releases concerning a bill the administration hasn't even read. The Congress will continue to give this issue the careful consideration it deserves and we hope the administration will change course and join us in this effort.
The surveillance legislation being debated by Congress is meant to replace the now-defunct Protect America Act [S 1927 materials; JURIST report], which expired earlier this month before Congress could reach an agreement on legislation to replace it. The Washington Post has more.

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