Shortly after the Sept. 11 attacks, the Bush administration asked the nation's big phone companies to give the government access to their customers' phone calls and Internet traffic — without a warrant. It appears that all but one of them complied and now those phone companies face more than 40 lawsuits.
Under intense pressure from the White House, the Senate Intelligence Committee last month put immunity for those phone companies into a bill revising the Foreign Intelligence Surveillance Act.
Sen. Orrin Hatch (R-UT) voted for the bill, as did almost everyone else on the panel. Hatch also sits on the Judiciary Committee, which takes up that bill Thursday. He went to the Senate floor Wednesday and declared that the companies that cooperated with federal authorities don't deserve "a kick in the gut," but rather a round of applause.
"Any company that has done its part to provide for the protection of American families deserves protection in return," Hatch said. "And we have always done so in the past. If not, the next time we reach out for a helping hand, we will be the ones who receive a slap to the face. And really, who could blame them?"
The phone companies' actions are also being defended by some Senate Democrats. Like Hatch, Dianne Feinstein (D-CA) is on both the Intelligence and the Judiciary committees. She's among those on the panel who voted for immunity.
"These are large corporations, true. They cannot mount their own defense under this law, and I think everybody on both sides of this aisle believes that every defendant is entitled to defend themselves," Feinstein said. "The exception is in the intelligence area — and so this is a big problem."
They can't defend themselves because the Bush administration says state secrets are involved in the lawsuits, so the phone companies can't discuss them.
Still, Sen. Arlen Specter, the top Republican on the Judiciary Committee, declared last week that he is concerned more about the phone company's customers than he is about the companies themselves.
"It is unwise to grant retroactive immunity, because it would foreclose litigants — people who claim their privacy has been invaded — would foreclose them from having a day in court," the Pennsylvania senator said.
Specter has suggested substituting the federal government for the phone companies as the lawsuits' defendant. Senate Republican leader Mitch McConnell of Kentucky said that would only make matters worse.
"Why in the world should the American taxpayer have to subsidize plaintiffs who are suing companies for answering a request of their government to help protect the American public from further attack?" McConnell asked.
It's not clear whether any Democrats, other than Feinstein, will vote Thursday to keep the immunity provision. One of them, Wisconsin Sen. Russ Feingold, urged fellow panel members last week to oppose it.
"If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to grant a new form of retroactive, blanket immunity for alleged cooperation with an illegal program," Feingold said. "It would also very likely prevent the courts from ruling on the warrantless wiretapping program, which would explain why the administration is pushing so hard for it."
All sides agree that the immunity dispute will eventually be fought out on the Senate floor.