The Senate approved a bill today that will finally provide some guidance on procedures for government eavesdropping under what the Bush Administration has dubbed its “terrorist surveillance program.” The bill provides that any future surveillance be approved by the non-public United States Foreign Intelligence Surveillance Court.
Of particular note in the bill is the fact that telecom companies were granted immunity for providing assistance to the Bush Administration so long as they can show that they were given assurances from the Administration that the eavesdropping was legal.
Opinions were mixed about this immunity. Senator Patrick Leahy noted that the bill “does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.” Others note that telecommunication firms were placed in difficult positions; either obey the administration or suffer the political consequences. Of course, AT&T and Verizon Communications, among others, have very large legal departments that could easily have vetted the issue by asking for clarification from the federal courts in a protected, non-public manner. The fact that these firms turned a blind eye to their customers’ civil rights is problematic.
If blanket immunity is not appropriate, what is? Appreciating the unique circumstances, perhaps Congress could have split the baby, capping economic damages, but allowing lawsuits to continue. There is little question that civil liberties were violated in this case. Granting a total pass on liability for telecommunications companies that turned a blind eye to these issues was not the best policy choice.