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Tuesday, February 12, 2008

Battle against telecom immunity is not over

By Rebecca Carr | Tuesday, February 12, 2008, 06:04 PM

Civil liberties groups are already moving past the Senate vote tonight on legislation that would overhaul the nation’s electronic surveillance rules and provide legal cover to telephone companies that participated in a secret terrorist eavesdropping program without a court warrant.

The 68 to 29 vote sends the Senate overhaul of the 1978 Foreign Intelligence Surveillance Act to the negotiating table with House leaders. And that is where groups like the American Civil Liberties Union and the Electronic Frontier Foundation are directing their attention.

There, House and Senate negotiators must hammer out major differences between the two chambers over how best to update the 30-year-old law.

The most controversial difference is granting the telecom industry retroactive immunity from some three dozen lawsuits alleging that the companies participated in President Bush’s terrorist surveillance program without court permission in violation of the law.

The House bill does not provide the telecoms with legal protection from those lawsuits and it demands greater oversight over future electronic surveillance.

“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said Kevin Bankston, senior counsel at Electronic Frontier Foundation, a digital civil liberties group based in San Francisco.

EFF represents the a group of AT&T customers in a class action lawsuit accusing the telecommunications company of violating their rights by illegally assisting the government in domestic surveillance.

“Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying,” Bankston said.

The ACLU vowed to nix immunity from the final bill.

“This is a sad day for the rule of law,” said Tim Sparapani, senior counsel at the ACLU. “Today, the Senate voted to cover up illegal wiretapping.”

Time is running out. A temporary measure approved last August is set to expire on Friday when Congress recesses for the President’s Day holiday.

“We’ve lost every single battle we had on this bill,” said Sen. Christopher J. Dodd, D-Conn., leading the opposition to telecom immunity. “The question now is can the House do better?”

By a 31 to 67 vote, the Senate rejected an amendment from Dodd that would have stripped the immunity provision from the bill. Republicans voted as a block with 18 Democrats and Sen. Joseph Lieberman, an indepenent from Connecticut, against the amendment.

Dodd warned the battle is not over. If the final bill provides retroactive immunity for the telecoms, Dodd said he would filibuster the bill.

“We have created a precedent here that would suggest that the word of an American president is enough for 16 companies to basically vacuum clean every phone call, every fax, every email./././ without any governor on this at all,” Dodd said. “That was the single largest invasion of privacy in the history of the country. And we have just sanctioned it with retroactive immunity.”

But the Bush administration and the telecom industry argue that the telecommunications companies should not be punished for helping the country with an eavesdropping program sanctioned by the Justice Department and authorized by the president after the Sept. 11, 2001, terrorist attacks.

Leading House Republicans are already working to garner support for the Senate bill, raising the specter of a showdown over immunity.

Rep. Lamar Smith, R-Texas, said the Senate measure is superior to the House bill.

“I hope they have seen the light. I hope that they will take the Senate bill and pass it quickly, turn it around quickly, and continue to protect the American people,” said Smith, ranking member of the House Judiciary Committee. “Why are we making it more difficult to gather intelligence after 9/11 than before 9/11?”

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More testimony in Secret Service lawsuit

By Rebecca Carr | Tuesday, February 12, 2008, 05:43 PM

More details in the lawsuit alleging that the U.S. Secret Service discriminated against African American agents by creating a “racially hostile atmosphere.”

Carrie Hunnicutt, the Secret Service inspector in charge of searching for all paper documents related to the promotion of black agents, testified today that the service conducted a “good-faith search” of every office to locate paper records sought by plaintiffs.

“I thought this was a good-faith search world-wide of every Secret Service office that pertained to the court ordered request,” said Hunnicutt of the search ordered by U.S. Magistrate Judge Deborah A. Robinson on December 21, 2007. “They searched everywhere.”

But E. Desmond Hogan, a Hogan & Hartson lawyer representing the plaintiffs for free, attempted to poke holes in that assertion.

Hogan asked how the search could be thorough when the head of the Buffalo field office failed to search for “even one piece of paper” according to Hunnicutt’s own questionnaire evaluating the extent to which the service conducted its search.

In another example, Hogan asked how it could be a complete search when some senior officials did not even respond to all of Hunnicutt’s questions about their search.

Robinson held the hearing in an effort to determine whether she should sanction the government a 4th time for failing to produce evidence and credible testimony in the discovery process. Legal experts say it is extremely rare for a judge to sanction the government so many times.

Hunnicutt tried several times to defend the service. At times, she offered a defense of the search without answering the question posed by Hogan.

At one point, Robinson threatened to strike her entire testimony from the court record if she did not start answering the questions posed by Hogan.

Given Hunnicutt’s doctorate degree and senior job with the service, Robinson said she had “no doubt” that Hunnicutt understood Hogan’s questions.

At times, Hunnicutt responded with long periods of silence before answering.

Hogan asked Hunnicutt why she deliberated so long before answering his questions in stark contrast to her speedy response to the lawyers representing the service. At times, he said, she took in excess of a minute to respond.

Hunnicutt said she needed more time to answer Hogan’s questions because she did not think he would allow her to elaborate or explain her answers.

Michelle Johnson, an assistant U.S. Attorney, allowed her to expand on her responses.

Robinson continued the hearing until later this month.

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