After months of negotiations behind closed doors, a supposed compromise has been reached on an extremely controversial spying bill.

    However, critics charge that the new bill is actually a capitulation by Democrats who had previously stood up against the Bush administration and members of their own party.

    The Foreign Intelligence Surveillance Act (FISA) update would amend the spying law which regulates the president's ability to conduct domestic and international surveillance. The most controversial aspect of the new legislation is a section which, if passed, would give retroactive legal cover for telecommunications companies that may have broken laws and privacy contracts by giving the government access to customers' records and data.

    "The proposed FISA deal is not a compromise; it is a capitulation," Senator Russ Feingold (D-Wisconsin) said in a statement Thursday, adding, "The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home."

    Jim Manley, spokesman for Majority Leader Harry Reid (D-Nevada), struck a different tone but reinforced Feingold's criticism of the retroactive immunity provision. "Senator Reid believes this version is better than the bill the Senate passed in February and much better than the Protect America Act signed by the President last summer, but he remains opposed to retroactive immunity and is reviewing the bill in its entirety," Manley said in a statement.

    The section of the bill that would grant immunity is titled "Protection of Persons Assisting the Government," a title in line with the argument of the Bush administration and immunity proponents that retroactive legal protection is needed to ensure future cooperation of private business with the intelligence apparatus. This argument falls flat, according to critics, because the original FISA law included legal immunity for companies cooperating with surveillance warrants. Because the Bush administration circumvented the FISA process, potentially in violation of the law, the telecoms could have refused to comply until a warrant was issued.

    The immunity provision would allow district courts to dismiss lawsuits against telecoms if the court were to rule that companies involved had been given assurances by the Bush administration that their cooperation was legal. One telecom, Qwest Communications, reportedly refused to cooperate with the administration's spying program because of legal concerns.

    It is well established that the Bush administration's Department of Justice gave periodic assurances in writing to telecoms that their cooperation was legal under the DOJ interpretation of the law. However, critics charge that the telecoms should have independently evaluated whether their participation in the warrantless surveillance that was taking place outside the traditional legal channels was in fact legal.

    There are approximately forty lawsuits pending against the telecoms, all of which would probably be dismissed if the current bill becomes law. Critics of the retroactive immunity provision say that letting the telecoms off the hook for lawbreaking would be irresponsible because the extent of potential lawbreaking is not yet known.

    "Congress is poised to once again pass disastrous surveillance legislation, now upping the ante with a thinly-veiled giveaway to some major campaign donors," Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a statement Thursday, adding, "The Hoyer/Bush surveillance deal was clearly written with the telephone companies and internet providers at the table and for their benefit. They wanted immunity, and this bill gives it to them."

    The ACLU also criticized the back room dealings which produced this new compromise bill. "The process by which this deal has come about has been as secretive as the warrantless wiretapping program it is seeking to legitimize. While members and organizations who would seek to fiercely protect the civil liberties of Americans have been denied a seat at the table, one wonders how present the powerful telecom lobby has been."

    A previous investigation by Truthout showed that a think tank with many active donors to the Democratic Party and deep connections to the telecommunications industry was pushing for the immunity provision. Thirdway, a self-titled "progressive" think tank, consulted with Senator Jay Rockefeller (D-West Virginia), chairman of the Senate Intelligence Committee and sponsor of the bill containing immunity.

    Rockefeller has been the main proponent of retroactive immunity on the Democratic side. In October 2007, Wired magazine's Threat Level blog revealed that Rockefeller began receiving large campaign contributions from high-level executives in the telecommunication industry when he became chairman of the Intelligence Committee.

    Because of the unique civil liberties and national security challenges posed by legislation involving domestic spying, two committees in the Senate - the Judiciary Committee and the Intelligence Committee - were tasked with creating a bill that would keep the spying apparatus of the United States functioning while not impinging on the right to privacy of American citizens. The Judiciary Committee drafted a bill that did not include retroactive immunity, but it was struck down on the Senate floor because a handful of Democratic senators voted against it.

    Senator Chris Dodd (D-Connecticut) pledged to filibuster any legislation that included a retroactive immunity provision. His office could not be immediately reached for comment on the new bill.

    Chairman of the Senate Judiciary Committee Patrick Leahy (D-Vermont), one of the most fiery opponents of the immunity provision, blasted the new bill in a statement Thursday. "After months of negotiations, the legislation unveiled today to replace the so-called Protect America Act, which Republicans refused to extend, is not a bill I can support. I have said since the beginning of this debate that I would oppose a bill that did not provide accountability for this administration's six years of illegal, warrantless wiretapping ... I will continue to work to protect all Americans from the Bush-Cheney administration's rollback of civil liberties of Americans and disregard for the rule of law. As the Supreme Court noted last week, 'security subsists, too, in fidelity to freedom's first principles.' We can protect our security while honoring American values and respecting our freedoms," Leahy's statement said.

    The House of Representatives is scheduled to vote on the bill as soon as Friday. Because of the thin party margins and unanimous Republican support in Congress, it will only take a handful of Democratic votes to pass the legislation. The Senate will take up the bill next week as early as Tuesday.