[Infowarrior] - Administration, Congress Settle Dispute Over Surveillance

[Richard Forno]

Administration, Congress Settle Dispute Over Surveillance
Deal Would Provide Some Telecom Immunity, Extend Government Powers

By Paul Kane and Carrie Johnson
Washington Post Staff Writers
Thursday, June 19, 2008; 2:28 PM

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/19/AR2008061901545_pf.html

The White House and Congress today reached a deal on the most  
comprehensive overhaul of the nation's intelligence surveillance laws  
in 30 years. It would provide potential retroactive immunity for  
telecommunications companies that previously cooperated with the Bush  
administration's warrantless wiretapping program and extend government  
surveillance powers.

After months of negotiations between President Bush's top advisers and  
congressional leaders, the deal was announced today and set to be  
approved on the House floor tomorrow. Senate passage of the  
reauthorization of the Foreign Intelligence Surveillance Act, which  
had been held up since last summer largely because of fights about the  
immunity provision, would likely come next week.

Some Democratic leaders have argued that the bill does not go far  
enough in protecting civil liberties. They were backed by groups such  
as the American Civil Liberties Union that have filed lawsuits against  
telecommunications companies for helping the government monitor phone  
calls and e-mails into and out of the United States without warrants  
after the Sept. 11, 2001, terrorist attacks.

A key element of the new plan would give U.S. district courts the  
chance to evaluate whether telecommunications companies deserve  
retroactive protection from lawsuits. A previous proposal offered by  
Republicans would have put the question to the secret FISA court that  
approves warrants.

The proposal would give retroactive immunity to telecommunications  
companies that can show the court that they received assurances from  
government officials that the program was legal and that they have  
"substantial evidence" in the form of classified letters from  
authorities to support their position.

The immunity would cover companies that helped the government after  
the terrorist attacks until Jan. 17, 2007, when the surveillance  
program was brought under the secret FISA court.

The retroactive legal protection would not apply to lawsuits filed  
against the government on behalf of people who say they suffered harm  
because of the surveillance.

Caroline Frederickson, a lobbyist for the ACLU, said the court review  
into whether companies received government requests to take part in  
the warrantless eavesdropping amounts to little more than "window- 
dressing."

"The telecom companies simply have to produce a piece of paper we  
already know exists, resulting in immediate dismissal," she said.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) immediately  
signaled his opposition, saying that bill "lacks accountability  
measures I believe are crucial" to allow for courts to rule on whether  
the wiretapping program is legal.

Kevin Bankston, a senior staff attorney at the Electronic Frontier  
Foundation, which is suing AT&T over the surveillance, urged Sen.  
Barack Obama (Ill.), the presumptive Democratic nominee for president,  
to "be as vocal as possible in the coming weeks and to lead his party"  
in opposing the plan.

"No matter how they spin [the compromise], it is still immunity,"  
Bankston said.

But House Majority Leader Steny H. Hoyer (Md.), who has been the lead  
Democratic negotiator with the White House and congressional  
Republicans, said this week that the bill is much better than the  
version approved earlier this year by the Senate, which allowed for no  
court review of the immunity.

"It will accommodate the protection of civil liberties going forward,"  
Hoyer said yesterday.

The outlines of the deal bode poorly for more than 40 lawsuits filed  
against telecommunications providers such as AT&T, Verizon and Sprint  
for providing vast troves of customer data to government investigators  
after the terrorist attacks.

Attorney General Michael B. Mukasey and leaders of the intelligence  
community have warned that if a deal to overhaul FISA were not struck  
this summer, valuable information that could help forestall terrorism  
might be lost.

Democrats fought the administration over the immunity provision for  
the warrantless wiretapping program -- which many civil libertarians  
viewed as unconstitutional -- and delayed passage of the FISA  
overhaul. Instead, they passed the Protect America Act last August,  
providing some of the new laws needed to monitor suspected terrorists.  
FISA court orders that allowed continued surveillance while the  
legislation was debated are scheduled to expire early this August,  
according to administration officials.

Critics question whether the data really would have been unavailable  
and whether the administration is citing a possible intelligence gap  
for political gain.

"It looks like it was all give from the Democratic side and all take  
from the Republican side," ACLU's Frederickson said.