The top Republican on the Senate Judiciary Committee is drafting a compromise to resolve the thorny issue of whether to provide retroactive liability protections for the phone companies that allegedly participated in the Bush administration’s secret wiretapping program.

At a markup on a bill to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), Sen. Arlen Specter (R-Pa.) plans to offer an amendment that would make the federal government — instead of the phone companies — the defendant in about 40 pending lawsuits across the country.

“I think it’s very important that the courthouse not be closed so there can be a judicial determination to see if there have been any violations of privacy rights,” Specter said. “I think the telephone companies were good citizens, and should not suffer from what they did. And my idea is to have the government substituted as the party.”

The issue of immunity for telecommunications firms has become a flashpoint as Congress grapples with overhauling FISA. Democrats are pushing for stronger oversight of the National Security Agency’s warrantless surveillance program, and an administration-backed interim bill that Congress passed in August expires in February.

The Senate Intelligence Committee last month approved a bill by a 13-2 vote that includes a provision to extend liability protections for companies that allegedly participated in the program after the Sept. 11 attacks, provided that the firms can show they had authorization from the government. A corresponding FISA bill in the House, which is still awaiting floor action, does not include an immunity provision.

Proponents of the provision say companies were given assurances by the administration that their actions were legal, and therefore should not be hit with lawsuits when acting in the interest of national security. But critics argue that if companies — and the Bush administration — were acting legally, they should not need blanket protections for allegedly giving away private information on U.S. citizens.

A week ago, the White House made available documents to the Senate Judiciary Committee, which has joint jurisdiction over the issue with the Intelligence Committee, to back its push for an immunity provision. But that effort does not appear to have swayed some key members of the committee.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) seemed skeptical when asked about Specter’s plan on Wednesday.
“So we would have the taxpayers pay the cost of the Bush administration breaking the law? Interesting concept, I’ll look at it,” Leahy said.

In contrast, Senate Majority Whip Dick Durbin (D-Ill.), who sits on the committee, sounded open to the idea.

“I think the government needs to be held accountable for a warrantless program that I think clearly violated the law,” Durbin said.

Two wildcards on the Democratic side will be Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.), who both voted for the bill with the immunity provisions in the Intelligence Committee. Another Judiciary Committee Democrat who also sits on the Intelligence Committee, Sen. Russ Feingold of Wisconsin, has vowed to strike the immunity language during the markup.

Additionally, Specter may have a tough time winning over fellow Judiciary Committee Republicans.

Jon Kyl (Ariz.), who also serves as the chairman of the Senate Republican Conference, said he would be opposed to changes to the Intelligence Committee’s language on the retroactive immunity provision. But he predicted that the Judiciary Committee could make the measure more palatable for Democrats.

Kyl said “many believe the bill [that will be approved by the Judiciary Committee] is going to go in precisely the opposite direction, not to provide liability protection for those companies that fulfill their patriotic duty and do what the government asks, not to permit the kind of intelligence collection abroad that we need.

“That is setting us up for a huge fight, one which we should be avoiding,” Kyl said.

Similarly, Sen. Kit Bond (R-Mo.), the vice chairman of the Intelligence Committee, called Specter’s plan “disastrous,” saying government secrets would be disclosed if lawsuits were allowed to proceed.