Bond: White House seems flexible on immunity for telecoms over wiretaps

The White House appears willing to compromise on the issue of retroactive immunity for telephone firms that joined the Bush administration’s wiretapping program, a senior GOP senator says.

The fight over whether the phone companies that helped in national security surveillance should be given immunity from lawsuits has prevented Republicans and Democrats from reaching an agreement to overhaul the Foreign Intelligence Surveillance Act (FISA).

{mosads}Sen. Kit Bond (R-Mo.), vice chairman of the Intelligence Committee, said the White House seems willing to let the FISA court help determine whether phone companies should be shielded from litigation.

Hitherto, the White House has argued that courts should not be involved at all and that Congress should instead write litigation protection into law for companies that wiretapped consumers’ conversations.

Bond said: “I think we’ve come up with some things that would involve the court, but not get to a position where it would endanger the program or the carriers.”

White House spokesman Tony Fratto declined to comment.

Bond said the language, drafted with White House consent, represented a “new provision we’ve come up with” on immunity. He would not give details other than to say that the FISA court would have a role. It is unclear whether the new approach will gain approval from Democratic leaders and negotiators.

Bond said the latest approach is not the one offered by Sen. Dianne Feinstein (D-Calif.) to provide immunity to companies deemed by the FISA court to have acted in good faith on the government’s national security requests.
In January, the Senate rejected the Feinstein amendment 41-57, with nearly every Republican voting against it, including Sen. John McCain (Ariz.), the party’s presidential candidate. The Democrats’ probable nominee, Sen. Barack Obama (D-Ill.), voted for the amendment.

Whatever happens in negotiations will echo along the campaign trail as the two parties define each other on national security.

House Democratic leaders have infuriated Republicans by refusing to take up an administration-backed bill, approved by the Senate in February, largely because it includes retroactive immunity for the telephone firms. They argue that companies and the administration should not be given immunity if they broke the law and spied on U.S. citizens without court warrants. McCain supported the Senate’s bill, while Obama opposed it.

A bill House Democrats prefer does not give immunity but provides a process that allows a federal district court to review classified evidence without the plaintiff present. This has little chance of passing the Senate. The legislation would stop the executive branch from asserting the “state secrets” doctrine to prohibit companies from arguing their defenses in court.

Administration officials reject such approaches for fear that classified details of the spying program would leak to the public. Director of National Intelligence Mike McConnell has argued that without immunity, which would wipe away about 40 lawsuits, telephone companies would be unwilling to help the government on a national security program.

The surveillance program is a flashpoint in the debate over the conflicts between security and privacy in the fight against Islamist terrorism. The Democratic left was infuriated last August when Congress approved a short-term law greatly expanding the administration’s spying powers. But that law, the Protect America Act, expired in February amid partisan stalemate.

Privacy groups fear that Democrats will again bend under election-year pressures. Democrats “seem to think that whenever they object to the president in this area they will be labeled as soft on terrorism,” said Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union.

Recently, talks have gone on separate tracks. Bond has taken his case directly to House Majority Leader Steny Hoyer (D-Md.), who also has held separate talks with Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.). Bond said talks with a wider range of lawmakers and staff were unfocused.

Bond and Hoyer have narrowed their talks down to two areas: retroactive immunity and procedures on targeting people outside the United States in eavesdropping and minimizing communications captured incidentally during surveillance operations.

Hoyer has recently suggested revisions, including more court involvement in minimization and targeting procedures.

“There were something like 50 people, and they came up with 25 different ideas, and [Hoyer] sent the list over to me and said, ‘Thank you very much for your ideas, but you and I have talked about the two main ones,’ ” Bond said of a recent meeting with all House and Senate negotiators.

Bond’s efforts might not go over well with Rockefeller, who offered his own proposal last week.

“I’m neither optimistic nor pessimistic, but I’m hopeful,” Rockefeller said about reaching an agreement.

Bond described Rockefeller’s plan as “bizarre” and said it “totally undid what we passed in the Senate.”

Wendy Morigi, a Rockefeller spokeswoman, said the plan was a “consensus document” that was the senator’s “best effort at addressing all sides” in the debate.