By Daniel Barlow Vermont Press Bureau
June 21, 2008

MONTPELIER – U.S. Rep. Peter Welch was among the 129 nay votes Friday on a bill legalizing a once-secret Bush administration wiretapping program that also grants immunity to telecommunication companies that participated in that effort.

But with 105 other House Democrats joining 188 Republicans in voting yes on the bill, the Vermont Democrat was left wondering who – if anyone – would be accountable for allegedly violating the 1978 Foreign Intelligence Surveillance Act (FISA).

"I think we abdicated our responsibility with this vote to hold people accountable for the program," Welch said Friday afternoon, shortly after returning to Vermont. "I'm not just speaking of the telecommunication companies, but the administration as well."

Friday's House vote is a revision to FISA, which set up a special court to approve spying on Americans in their communications with people outside of the country. Under the new bill – which is expected to pass the U.S. Senate next week – the federal government can spy on Americans for up to seven days before seeking a warrant.

It also provides legal immunity for the telecommunications companies that had been participating in the secret federal program authorized by President Bush, which he said was to monitor conversations with suspected terrorists.

Welch said Friday that this bill was "less bad" than a previous proposal that was approved by the Senate and rejected by the House last year. This bill puts into place more restrictions on the spying activities than the other bill, he said.

"But with this immunity provision we are essentially letting the president off the hook for violating our civil lib-erties," Welch said.

Promises of immunity are usually used as a prosecutorial tool to obtain testimony or new information, Welch said. But that is not the case here, he said, because it will shut down a myriad of lawsuits against the telephone companies that probably would have resulted in more information going public about the once-secret program.

"These lawsuits could have been our access to this information," he explained.

But what does this mean for Vermont's own investigation into allegations that its two telephone companies at the time – Verizon and AT&T – violated state and federal consumer protection laws by releasing customer data to the federal government?

The case, which is before the quasi-judicial Vermont Public Service Board, was delayed after the federal government countersued, resulting in a consolidated case pending in California. The Board reactivated the case late last year, but there appears to be little movement on the issue since.

Richard Smith, the deputy commissioner of the Vermont Department of Public Service, said late Friday that he will soon consult with the department's legal team to see how this new bill – if it becomes law – would impact the case here in Vermont.

The case is still open, he said, as is the legal challenge to the investigation launched by Vermont and several other states after the secret wiretapping program was revealed by the news media in 2005.

"We will continue the case as long as we can because we think it is important," Smith said.

Allen Gilbert, the executive director of the Vermont chapter of the American Civil Liberties Union, said his reading of the immunity provision in the federal bill suggests that it will kill any inquests into the issue – whether it is before a court or public utility board.

"We are going to try to see if our complaint will still go forward," he said.

The proposed FISA revisions allow the federal government to seek blanket warrants for groups of people or locations. Gilbert said this clearly violated the U.S. Constitution's Fourth Amendment, which requires that searches be court-approved first and based on specific suspicions.

"The federal government will soon have the authority to mount broad surveillance without individual suspicion," he said.

The FISA bill and its immunity provision are expected to pass in the U.S. Senate this week, where the Democrats have an even slimmer majority. Vermont's two senators – Democrat Patrick Leahy and independent Bernard Sanders – are expected to oppose the bill as well.

Welch said Friday that it was not clear to him if his fellow House Democrats who supported the bill did so because they agreed philosophically with it or because they were concerned that a nay vote could be spun politically as unpatriotic.

"You're going to have to ask them that," he said. "I can only account for my vote."

Contact Daniel Barlow at Daniel.Barlow@rutlandherald.com.