[Infowarrior] - Senate Backs Wiretap Bill to Shield Phone Companies

[Richard Forno]

July 10, 2008
Senate Backs Wiretap Bill to Shield Phone Companies
By ERIC LICHTBLAU

http://www.nytimes.com/2008/07/10/washington/10fisa.html?_r=1&hp=&oref=slogin&pagewanted=print

WASHINGTON — More than two and a half years after the disclosure of  
President’s Bush’s domestic eavesdropping program set off a furious  
national debate, the Senate gave final approval on Wednesday afternoon  
to broadening the government’s spy powers and providing legal immunity  
for the phone companies that took part in the wiretapping program.

The plan, approved by a vote of 69 to 28, marked one of Mr. Bush’s  
most hard-won legislative victories in a Democratic-led Congress where  
he has had little success of late. Both houses, controlled by  
Democrats, approved what amounted to the biggest restructuring of  
federal surveillance law in 30 years, giving the government more  
latitude to eavesdrop on targets abroad and at home who are suspected  
of links to terrorism.

The issue put Senator Barack Obama of Illinois, the presumptive  
Democratic nominee, in a particularly precarious spot. After long  
opposing the idea of immunity for the phone companies in the  
wiretapping operation, he voted for the plan on Wednesday. His  
reversal last month angered many of his most ardent supporters, who  
organized an unsuccessful drive to get him to reverse his position  
once again. And it came to symbolize what civil liberties advocates  
saw as “capitulation” by Democratic leaders to political pressure from  
the White House in an election year.

Senator Hillary Rodham Clinton of New York, who was Mr. Obama’s rival  
for the Democratic presidential nomination, voted against the bill.

The outcome was a stinging defeat for opponents who had urged  
Democratic leaders to stand firm against the White House after a  
months-long impasse.

“I urge my colleagues to stand up for the rule of law and defeat this  
bill,” Senator Russell D. Feingold, Democrat of Wisconsin, said in  
closing arguments.

But Senator Christopher S. Bond, the Missouri Republican who is vice  
chairman of the Senate Intelligence Committee, said there was nothing  
to fear in the bill “unless you have Al Qaeda on your speed dial.”

Supporters of the plan, which revised the Foreign Intelligence  
Surveillance Act, said that the final vote reflected both political  
reality and legal practicality. Wiretapping orders approved by a  
secret court under the previous version of the surveillance law were  
set to begin expiring in August unless Congress acted, and many  
Democrats were wary of going into their political convention in Denver  
next month with the issue hanging over them—handing the Republicans a  
potent political weapon.

Voting for the bill were 47 Republicans, 21 Democrats and an  
independent, Senator Joseph I. Lieberman of Connecticut. Twenty-seven  
Democrats and Senator Bernard Sanders, independent of Vermont, voted  
against it. Not voting were Senators; John McCain of Arizona,  
campaigning for the Republican presidential nomination, and Jeff  
Sessions, Republican of Alabama, both of whom would have been expected  
to voted “yes” Senator Edward M. Kennedy, Democrat of Massachusetts,  
who was a sharp critic of the bill, was not present for the vote, but  
later returned to the floor to applause after being sidelined with  
cancer.

The surveillance plan, which Mr. Bush is expected to sign into law  
quickly, was the product of months of negotiations between the White  
House and Democratic and Republican leaders, earning the grudging  
support of some leading Democrats.

Senator John D. Rockefeller IV, the West Virginia Democrat who leads  
the intelligence committee and helped broker the deal, said  
modernizing the 1978 Foreign Intelligence Surveillance Act was  
essential to protecting national security and giving intelligence  
officials the technology tools they need to deter another terrorist  
strike. But he said the plan “was made even more complicated by the  
president’s decision, in the aftermath of September 11, 2001, to go  
outside of F.I.S.A. rather than work with Congress to fix it.”

He was referring to the secret program approved by Mr. Bush weeks  
after the Sept. 11 that allowed the National Security Agency, in a  
sharp legal and operational shift, to wiretap the international  
communications of Americans suspected of links to Al Qaeda without  
first getting court orders. Disclosure of the program in December 2005  
by The New York Times led to lawsuits and condemnation from critics,  
including one federal judge who ruled that the program was illegal,  
only to be overruled on appeal. It also set off many rounds of  
abortive attempts in Congress to find a legislative solution.

The key stumbling block in the congressional negotiations was the  
insistence by the White House that any legislation include legal  
immunity for the phone companies that took part in the wiretapping  
program. The program itself ended in January 2007, when the White  
House agreed to bring it under the auspices of the special court set  
up by the earlier surveillance law, known as the F.I.S.A. court.  
Still, more than 40 lawsuits continued churning through federal  
courts, charging AT&T, Verizon and other major carriers with breaking  
the law and violating their customers’ privacy by agreeing to the  
White House’s requests to conduct wiretaps without a valid court order.

The deal approved on Wednesday, which passed the House on June 20,  
effectively ends those lawsuits. It includes a narrow review by a  
district court to determine whether in fact the companies being sued  
received formal requests or directives from the administration to take  
part in the program. The administration has already acknowledged that  
those directives exist. Once such a finding is made, the lawsuits  
“shall be promptly dismissed,” the bill says. Republican leaders say  
they regard the process as a formality in ensuring that the phone  
carriers are protected from any legal liability over their  
participation.

Liberal Democrats in the Senate, led by Senators Feingold and  
Christopher J. Dodd of Connecticut, sought in vain to pare down the  
proposal. An amendment sponsored by Mr. Dodd to strip the immunity  
provision from the bill was defeated, 66 to 32.

Two other amendments were also rejected. One, offered by Senator Arlen  
Specter, Republican of Pennsylvania, would have required that a  
district court judge assess the legality of warrantless wiretapping  
before granting immunity. It lost by 61 to 37. The other, which would  
have postponed immunity for a year pending a federal investigation,  
was offered by Senator Jeff Bingaman, Democrat of New Mexico. It was  
defeated by 56 to 42.

Lawyers involved in the lawsuits against the phone companies promised  
to challenge the immunity provision in federal court, although their  
prospects appeared dim.

“The law itself is a massive intrusion into the due process rights of  
all of the phone subscribers who would be a part of the suit,” said  
Bruce Afran, a New Jersey lawyer who represents several hundred  
plaintiffs in one lawsuit against Verizon and other companies. “It is  
a violation of the separation of powers. It’s presidential election- 
year cowardice. The Democrats are afraid of looking weak on national  
security.”

The legislation also expands the government’s power to invoke  
emergency wiretapping procedures. While the National Security Agency  
would be allowed to seek court orders for broad groups of foreign  
targets, the law creates a new, 7-day period for targeting foreigners  
without a court order in “exigent” circumstances if government  
officials assert that important national security information would be  
lost otherwise. The law also expands from three to seven days the  
period in which the government can conduct emergency wiretaps without  
a court on Americans if the attorney general certifies that there is  
probable cause to believe the target is linked to terrorism.

Democrats pointed to some concessions they had won from the White  
House in the lengthy negotiations. The final bill includes a  
reaffirmation that the surveillance law is the “exclusive” means of  
conducting intelligence wiretaps — a provision that House Speaker  
Nancy Pelosi and other Democrats insisted would prevent Mr. Bush or  
any future president from evading court scrutiny in the way that the  
N.S.A. program did.

The measure will also require reviews by the inspectors general from  
several agencies to determine how the program was operated. Democrats  
said that the reviews should provide accountability that had been  
missing from the debate over the wiretaps.

David Stout contributed reporting.