Senate OKs new rules on eavesdropping
By PAMELA HESS, AP, Feb. 12, 2008
WASHINGTON - The Senate on Tuesday approved new rules for government eavesdropping on phone calls and e-mails, giving the White House much of the latitude it wanted and granting legal immunity to telecommunications companies that helped in the snooping after the Sept. 11 terrorist attacks.
Protection for the telecom companies is the most prominent feature of the legislation, something President Bush had insisted on as essential to getting private sector cooperation in spying on foreign terrorists and other targets. The bill would give retroactive protection to companies that acted without court permission.
The House did not include the immunity provision in a similar bill it passed last year. House Republicans now want to adopt the Senate bill, which would avoid contentious negotiations to work out differences between the competing legislation.
About 40 lawsuits have been filed against telecom companies by people alleging violations of wiretapping and privacy laws.
Bush promised to veto any new surveillance bill that did not protect the companies, arguing that it is essential if the private sector is to give the government the help it needs.
The president called the Senate bill a good piece of legislation that allows the intelligence community to monitor communications of foreign terrorists while protecting Americans' liberties. He urged the House to pass the bill and send it to his desk without delay.
The Senate bill provides "fair and just liability protection to those private companies who have been sued for billions of dollars only because they are believed to have done the right thing and assisted the nation after the September 11th terrorist attacks," Bush said.
House Judiciary Committee Chairman John Conyers said Tuesday he still opposes retroactive immunity.
"There is no basis for the broad telecommunications company amnesty provisions advocated by the administration," Conyers wrote in a letter to White House Counsel Fred Fielding asking for documents about the wiretapping program. The documents have been withheld from Congress.
The 68-29 Senate vote Tuesday to update the 1978 Foreign Intelligence Surveillance Act belied the nearly two months of stops and starts and bitter political wrangling that preceded it. The two sides had battled to balance civil liberties with the need to conduct surveillance on potential adversaries.
At issue is the government's post-9/11 Terrorist Surveillance Program, which circumvented a secret court created 30 years ago to oversee such activities. The court was part of the 1978 Foreign Intelligence Surveillance Act, a law written in response to government abuse of its surveillance authority against Americans.
The surveillance law has been updated repeatedly since then. Congress hastily adopted a FISA modification in August in the face of dire warnings from the White House that changes in telecommunications technology and FISA court rulings were dangerously constraining the government's ability to intercept terrorist communications.
Shortly after its passage, privacy and civil liberties groups said the new law gave the government unprecedented authority to spy on Americans, particularly those who communicate with foreigners.
That law, already extended once, expires Feb. 16.
Doubtful they can work out the differences in the bills by then, Democrats in both the Senate and the House prepared short-term extensions that would keep the law in effect for several more weeks. Senate Republican leader Mitch McConnell of Kentucky blocked an extension attempt Tuesday. Rep. Lamar Smith of Texas, the senior Republican on the House Judiciary Committee, said Republicans in the House would fight another extension.
The White House said Bush would not sign another 15-day extension of the law.
"The intelligence community needs this good, long-term legislation, not a patchwork of extensions," presidential spokeswoman Dana Perino said. "The House is risking national security by delaying action, and the president will not sign another extension."
On the way to passage, the Senate rejected by a vote of 67-31 a move to strip away a grant of retroactive legal immunity for the companies. It also rejected two amendments that sought to water down the immunity provision.
One of the amendments, co-sponsored by Republican Arlen Specter of Pennsylvania and Democrat Sheldon Whitehouse of Rhode Island, would have substituted the government for the telecom companies in lawsuits, allowing the court cases to go forward but shifting the cost and burden of defending the program.
The other, pushed by California Democrat Dianne Feinstein, would have given a secret court that oversees government surveillance inside the United States the power to dismiss lawsuits if it found that the companies acted in good faith and on the request of the president or attorney general.
While giving the White House what it wanted on immunity, the Senate also expanded the power of the court to oversee government eavesdropping on Americans. The amendment would give the FISA court the authority to monitor whether the government is complying with procedures designed to protect the privacy of innocent Americans whose telephone or computer communications are captured during surveillance of a foreign target.
The bill would also require FISA court orders to eavesdrop on Americans who are overseas. Under current law, the government can wiretap or search the possessions of anyone outside the United States — even a soldier serving overseas — without court permission if it believes the person may be a foreign agent.
"You don't lose your rights when you leave American soil," Sen. Ron Wyden, D-Ore., said in an interview. Wyden wrote the provision into the bill when it was still being considered by the Senate Intelligence Committee. "In the digital age, an American's rights shouldn't depend on their physical geography."