[Infowarrior] - Senate and Bush Agree On Terms of Spying Bill

[Richard Forno]

Senate and Bush Agree On Terms of Spying Bill
Some Telecom Companies Would Receive Immunity

By Jonathan Weisman and Ellen Nakashima
Washington Post Staff Writers
Thursday, October 18, 2007; A01

http://www.washingtonpost.com/wp-dyn/content/article/2007/10/17/AR2007101702
438_pf.html

Senate Democrats and Republicans reached agreement with the Bush
administration yesterday on the terms of new legislation to control the
federal government's domestic surveillance program, which includes a highly
controversial grant of legal immunity to telecommunications companies that
have assisted the program, according to congressional sources.

Disclosure of the deal followed a decision by House Democratic leaders to
pull a competing version of the measure from the floor because they lacked
the votes to prevail over Republican opponents and GOP parliamentary
maneuvers.

The collapse marked the first time since Democrats took control of the
chamber that a major bill was withdrawn from consideration before a
scheduled vote. It was a victory for President Bush, whose aides lobbied
heavily against the Democrats' bill, and an embarrassment for House Speaker
Nancy Pelosi (D-Calif.), who had pushed for the measure's passage.

The draft Senate bill has the support of the intelligence committee's
chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national
intelligence, Mike McConnell. It will include full immunity for those
companies that can demonstrate to a court that they acted pursuant to a
legal directive in helping the government with surveillance in the United
States.

Such a demonstration, which the bill says could be made in secret, would
wipe out a series of pending lawsuits alleging violations of privacy rights
by telecommunications companies that provided telephone records, summaries
of e-mail traffic and other information to the government after Sept. 11,
2001, without receiving court warrants. Bush had repeatedly threatened to
veto any legislation that lacked this provision.

Senate Democrats successfully pressed for a requirement that the Foreign
Intelligence Surveillance Court review the government's procedures for
deciding who is to be the subject of warrantless surveillance. They also
insisted that the legislation be renewed in six years, Democratic
congressional officials said. The Bush administration had sought less
stringent oversight by the court and wanted the law to be permanent.

The domestic surveillance issue has been awkward for Democrats since the
administration's secret program of warrantless counterterrorism surveillance
became public in late 2005. In August, a coalition of Republicans and
dissident Democrats passed a measure backed by the White House that put that
program on firm legal ground by expressly permitting the government to
wiretap foreign targets without a court order, including, under certain
circumstances, when those targets are communicating with people in the
United States.

But Democratic leaders insisted that the law expire in February, so they
could try again to impose more restrictions on the administration's ability
to spy domestically. Most Democratic lawmakers and party members -- backed
by civil libertarians and even some conservatives -- wanted the new
legislation to ensure for example that future domestic surveillance in
foreign-intelligence-related investigations would be overseen by the foreign
surveillance court. The court was created in response to CIA and FBI
domestic spying abuses unmasked in the mid-1970s.

But conservative Democrats worried about Republicans' charges that the
Democratic bill extended too many rights to suspected terrorists. "There is
absolutely no reason our intelligence officials should have to consult
government lawyers before listening in to terrorist communications with the
likes of Osama bin Laden, al-Qaeda and other foreign terror groups," said
House Minority Leader John A. Boehner (R-Ohio).

The measure "extends our Constitution beyond American soil to our enemies
who want to cut the heads off Americans," said Rep. Louie Gohmert (R-Tex.).

An adroit Republican parliamentary maneuver ultimately sank the bill. GOP
leaders offered a motion that would have sent it back to the House
intelligence and Judiciary committees with a requirement that they add
language specifying that nothing in the measure would apply to surveilling
the communications of bin Laden, al-Qaeda or other foreign terrorist
organizations.

Approval of the motion would have restarted the legislative process,
effectively killing the measure by delay. Democratic leaders scrambled to
persuade their members to oppose it, but with Republicans accusing Democrats
of being weak on terrorism, a "no" vote proved too hard to sell, and so the
bill was pulled from the floor.

Stacey Bernards, a spokeswoman for House Majority Leader Steny H. Hoyer
(D-Md.), called the Republican maneuver "a cheap shot, totally political."

Caroline Fredrickson, director of the Washington legislative office of the
American Civil Liberties Union, called it a "perfect storm" of progressive
Democrats who did not think the bill protected basic constitutional rights
and of Republicans who took advantage of the lack of unity. "It was too
precipitous a process, and it ended up in a train wreck," she said. "It was
total meltdown."

The House bill contained safeguards against spying on U.S. citizens that the
Bush administration said would have interfered with its national security
investigations. Some liberals, on the other hand, complained that it still
allowed the surveillance of Americans to occur without individual warrants.

It would have empowered the special surveillance court to issue warrants
allowing the government to intercept for up to one year the phone calls and
e-mails of groups of foreign targets, such as al-Qaeda or Hamas, without
requiring that the surveillance of each person be approved. If the foreign
target of the surveillance was calling a person in the United States
significant enough also to be deemed an intelligence target, then an
individual warrant would be required, as provided under past law.

The bill would have required the court to review the government's
surveillance procedures to ensure that they were designed to target only
people outside the country. Such reviews could be delayed up to 45 days
after surveillance began in emergencies. It also would have barred
warrantless physical searches in the United States, including of homes,
offices, computers and medical records, and made clear that the National
Security Agency and the CIA could not eavesdrop on targeted Americans, even
those abroad, without a traditional court warrant.

It was unclear late yesterday whether similar provisions are included in the
Senate version of the bill that attracted bipartisan support from lawmakers
and key intelligence officials.

The Senate deal was reached after the White House made available to the
intelligence committee some of the documents underlying the administration's
post-Sept. 11 warrantless surveillance program, to encourage the panel to
include the telecommunications immunity provision.

Democrats warned yesterday that the Senate intelligence panel's consensus
bill must gain the approval of the Senate Judiciary Committee, whose
chairman and ranking Republican have said, like their House counterparts,
that they are wary of granting immunity to telecommunications companies.

In June, the Judiciary Committee subpoenaed the documents underlying the
warrantless surveillance program, and Chairman Patrick J. Leahy (D-Vt.) and
ranking Republican Arlen Specter (Pa.) said they wanted to see those
documents before endorsing any immunity clause. "I'm not going to buy a pig
in a poke and commit to retroactive immunity when I don't know what went on"
in the past, Specter said Tuesday on CNN's "Situation Room." "I agree with
Arlen," Leahy said on the program.