Fear and False Claims

Margarita, Anyone?
Which brings us to the ad's next claim:

Narrator: Senate Democrats and Republicans vote overwhelmingly to extend terrorist surveillance. But the House refuses to vote and instead goes on vacation.

It's true that the Senate passed a bill replacing the Protect America Act, and it was largely to the White House's liking. It's not as though the House sat on its hands, however. It passed its own bill, the Restore Act, back in November.

The Bush administration opposes the House bill, as do its allies at Defense of Democracies, and the point of the ad is to pressure House members to accede to the Senate version. Both bills rein in, to some degree, the Protect America Act's broad wiretapping provisions, which had alarmed civil libertarians. The Senate bill grants more authority to the executive branch with respect to ordering surveillance, however, and a minimal role to the court, while the House bill envisions a larger role for the court.

And there's another major difference that's become a flash point on Capitol Hill. The Senate bill would give telecommunications companies retroactive immunity from lawsuits arising from their cooperation with the Bush administration's post-9/11 intelligence-gathering program. In December 2005, the New York Times broke a story revealing that after the World Trade Center and Pentagon attacks, President Bush secretly authorized a program that allowed the government to bypass FISA in pursuit of terrorists, even when collecting communications in the U.S. More than 40 lawsuits contending that the program was illegal and that telecom companies violated citizens' constitutional rights by participating in it are pending in federal court in California, consolidated from around the country. Bush has accused Democrats who oppose this immunity provision of shilling for the trial lawyers' bar, and he has cast the House Democrats as roadblocks on this issue almost daily.

Castigating the "Cripplers"
The ad's next claim is a very strong statement, but we don't have the security clearance to say how much truth is in it.

Narrator: [N]ew surveillance against terrorists is crippled.
Though the narrator never mentions it, this seems to be a reference to possible refusal by telecom firms to assist with wiretapping. In a letter written to House Intelligence Committee Chairman Silvestre Reyes last Friday, Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell said:

Mukasey/McConnell letter: We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act. ... In particular, [companies] have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets. ... Indeed, this has led directly to a degraded intelligence capability.

The alleged reason for this was because Congress hadn't yet given the firms retroactive immunity. Administration sources had told reporters that same evening that at least one telecom firm was refusing to help the government track newly suspected terrorists, according to the Los Angeles Times. Hours later, though, officials withdrew that claim, saying all the telecom companies would continue cooperating with the government's requests while Congress worked on a compromise.

Critics of the immunity provision point out that it provides blanket immunity and is not specifically targeted to lawsuits arising from the companies' cooperation with the post-9/11 program. Some suspect there may be another secret program that hasn't yet come to light. Telecom companies already have immunity for actions they take in connection with surveillance conducted under the law.