During the March 14 edition of Fox News' Fox & Friends, co-host Alisyn Camerota falsely asserted of a House Democratic proposal to amend the 1978 Foreign Intelligence Surveillance Act (FISA), “The Democrats are pushing legislation which would strip telecommunications companies of their immunity.” In fact, the House Democrats' bill does not “strip” telecommunications companies of immunity; it provides immunity prospectively, leaving intact existing immunity provisions under current law and leaving to the courts the question of whether the telecom companies are immune from suit for their alleged prior cooperation with the government in its warrantless domestic wiretapping program. While, as the Los Angeles Times noted, the bill “would not shield AT&T, Verizon and others from dozens of lawsuits they are already facing for giving the government access to their networks under a secret warrantless wiretapping operation authorized by Bush after the September 11 attacks,” the proposal would specifically establish prospective immunity: “Notwithstanding any other provision of law, no cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to” the legislation.
Twenty Democratic members of the House Judiciary Committee said in a March 12 statement that “we have taken care in legislation that has passed already and in proposed future legislation to ensure that relevant carriers receive prospective legal immunity for taking specified actions in response to appropriate government requests.”
The bill would leave for the courts the question of whether telecommunications companies are immune from suit for cooperation between September 11, 2001 through January 17, 2007. A March 14 New York Times article reported that one of the “key elements” of the House bill was that “it would refuse retroactive immunity to the phone companies, providing special authority instead for the courts to decide the liability issue.” Describing what was then a House Democratic proposal, the New York Times reported on March 11, “Under the proposal, the courts would be given authority to hear classified evidence in the civil suits -- perhaps on an 'ex parte' basis, with only one side in attendance -- to determine whether the companies are immune from liability.”
In a March 13 statement addressing President Bush's insistence that Congress grant retroactive immunity, House Majority Leader Steny Hoyer (D-MD) said:
The White House insistence that Congress provide telecommunications companies that participated in the President's surveillance program with blanket immunity is neither justified nor in keeping with our nation's legal tradition. In essence, the President is asking Congress to immunize companies for their conduct -- despite the fact that Congress is not sure what conduct it would be immunizing, and despite the fact that serious questions have been raised about the legality of the surveillance program. Congress owes the American people more than blind obeisance to the Executive Branch.
"This House bill would allow telecommunications companies which participated in the President's surveillance program to avail themselves of the legal defenses that currently exist, without providing blanket immunity. This approach is reasonable, thoughtful and appropriate.
From the March 14 edition of Fox News' Fox & Friends:
CAMEROTA: OK, the battle over the budget was not the only drama on Capitol Hill last night. The House of Representatives closed its doors to the public for an hour to take up a hotly debated surveillance bill. This was the first closed session in 25 years.
The Democrats are pushing legislation which would strip telecommunications companies of their immunity. President Bush promises to veto the bill if it passes. The House meets later today to debate on that spy measure, this time out in the open.
