The high court's ruling was subsequently bolstered in 1975 by an equally unanimous decision of the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, to expand its scope to include foreign intelligence cases.
The administration of then-President Gerald Ford chose not to appeal that ruling to the Supreme Court, assuming that it would likely lose. Thus the appeals court decision remains in force to this day.
Moreover, the telecoms are required under the Electronic Communications Privacy Act -- passed by Congress in 1986 to put added teeth to the Fourth Amendment -- to demand the government produce court warrants before the companies can turn over their confidential customer records.
A key provision of the Patriot Act also imposed a "gag order" on the telecoms, barring the companies from telling their customers that their records were being turned over. That provision was ruled unconstitutional last fall under the First and Fourth Amendments by a U.S. District Court in New York.
Civil Libertarians Hail House Vote
Instead of caving in to Bush, House Democrats reiterated their opposition to telecom immunity by including a call for an independent panel armed with subpoena power -- similar to the 9/11 Commission -- that would investigate the secret spying.
The House bill also authorizes the telecoms to defend themselves in court by showing secret documents to federal judges. The Bush administration has blocked them from using classified information in their own defense -- a move blasted by critics as violative of the telecoms' Sixth Amendment right to a fair trial.
The Electronic Frontier Foundation, which brought the leading suit against the nation's telecoms, applauded House Democrats' determination not to be a "rubber stamp" for the administration.
"Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good-faith belief that the NSA program was legal," EFF senior staff attorney Kevin Bankston said. "Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge."
Bush favors a Senate version of the bill that does give the companies legal immunity, saying it is a matter of fairness to the companies. The White House had assured them -- wrongly -- that no court order was needed for the wiretapping program.
With their vote on Friday, House Democrats served notice that telecom immunity is dead -- making reconciliation with the Senate version of the measure in the House-Senate Conference Committee all but impossible.
Surveillance Now Reverts to FISA Law -- Which Requires Court Warrants
With the expiration of the Protect America Act and the refusal of the House to approve telecom immunity, the Bush administration is now forced to conduct its anti-terror surveillance under the provisions of the Foreign Intelligence Surveillance Act, passed by Congress in 1978 in response to the Nixon administration's unconstitutional use of federal resources to spy on political and activist groups without warrants.
The FISA statute enforces the Fourth Amendment by requiring the government to obtain warrants from a special court established under the law for surveillance of Americans' telephone and Internet communications with foreign sources.
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