Amendment Would Put Spy Lawsuits, Amnesty On Hold Pending Investigation

By Ryan Singel |On Tuesday, the Senate resumes considering whether to hand new dragnet spy powers to the nation’s spooks and to grant retroactive amnesty to telecoms that secretly helped the government spy on Americans without warrants for five years.

The Senate seems set to bless the president’s secretive program and to free some of the nation’s largest corporations from the indignity of due process under the law, making an odd amendment from New Mexico Democrat Sen. Jeff Bingaman the the last real hope for those who want a court to rule on the legality of Bush’s spying program.

Democratic Sens. Christopher Dodd, Russ Feingold and Patrick Leahy have sponsored an amendment to fully strip the retroactive amnesty from the bill, therefore allowing a federal judge to decide how and whether to proceed with the class-action suits. That muscular approach failed by a substantial margin in March, and would likely do so again.

Republican Sen. Arlen Specter offered an amendment that would allow the judge in the case to dismiss a plea for amnesty if the court found that the underlying surveillance violated the Constitution. That’s a nifty proposal, but one unlikely to pass — given that the Republican-appointed judge in the combined anti-wiretapping cases all but declared the President’s secret wiretapping regime to be illegal in a ruling last week.

Bingaman offers a different solution. Hitching his amendment to the anti-amnesty argument (.pdf) that Congress should not approve what it did not understand, Bingaman proposes that the court cases and amnesty powers all are put on hold, until three months after the joint report by the Inspectors General of the various intelligence services complete their report to Congress on just what transpired between the nation’s telecoms and the intelligence services.

If Congress is disturbed by the report — due a year from the day the bill becomes law, it has time to undo or tweak the rules; otherwise, it can just leave amnesty provisions to come into effect three months after the report to Congress (both public and classified).

That report is already required in the larger bill, but it’s not due until next spring, far after the White House has a new inhabitant and long after the judge overseeing the anti-warrantless wiretapping program will have to dismiss the cases if the current bill is passed unmodified.

The Bingaman amendment makes the simple argument that Congress should not handing out pardons without knowing what the pardons are for.

Not surprisingly, the Director of National Intelligence and the Attorney General both told Senate Majority Leader Harry Reid (D-Nevada) that if the bill were passed with the Bingaman amendment, they and other senior Bush advisors would recommend that the President veto it.

“Continued delay in protecting those who provided assistance after September 11 will invariably be noted by those who may someday be called upon again to help the Nation,” DNI Michael McConnell and AG Michael Mukasey wrote Monday. “Any amendment that would delay implementation of the liablity protection is critical to the national security.”

Critics, such as the Electronic Frontier Foundation, say preventing massive cooperation with a secret government surveillance operation that targets Americans is exactly the point of the suit.

The government’s set-in-stone opposition does not surprise Kevin Bankston, an EFF attorney who specializes in surveillance law.

“They want to finish up the last of the cover-up of the government’s illegal, warrantless wiretapping program,” Bankston said.

The Senate is set to begin debate on the bill Tuesday, though planned votes on the three pending amendments and the final bill will be Wednesday to allow senators to attend the funeral of former North Carolina Senator Jesse Helms.

Senator Christopher Dodd (D-Connecticut) is scheduled to take to the Senate floor early evening Tuesday. His orations against telecom amnesty and wider spying powers stopped the bill cold in December and evince a passion rarely seen on the Senate floor.