[Infowarrior] - NYT: Congress Strikes Deal to Overhaul Wiretap Law

[Richard Forno]

June 20, 2008
Congress Strikes Deal to Overhaul Wiretap Law
By ERIC LICHTBLAU

http://www.nytimes.com/2008/06/20/washington/20fisa.html?_r=1&hp=&oref=slogin&pagewanted=print

WASHINGTON — After months of wrangling, Democratic and Republican  
leaders in Congress struck a deal on Thursday to overhaul the rules on  
the government’s wiretapping powers and provide what amounts to legal  
immunity to the phone companies that took part in President Bush’s  
program of eavesdropping without warrants after the Sept. 11 attacks.

The deal, expanding the government’s powers to spy on terrorism  
suspects in some major respects, would strengthen the ability of  
intelligence officials to eavesdrop on foreign targets. It would also  
allow them to conduct emergency wiretaps without court orders on  
American targets for a week if it is determined that important  
national security information would otherwise be lost. If approved, as  
appears likely, the agreement would be the most significant revision  
of surveillance law in 30 years.

The agreement would settle one of the thorniest issues in dispute by  
providing immunity to the phone companies in the Sept. 11 program as  
long as a federal district court determined that they received  
legitimate requests from the government directing their participation  
in the program of wiretapping without warrants.

With AT&T and other telecommunications companies facing some 40  
lawsuits over their reported participation in the wiretapping program,  
Republican leaders described this narrow court review on the immunity  
question as a mere “formality.”

“The lawsuits will be dismissed,” Representative Roy Blunt of  
Missouri, the No. 2 Republican in the House, predicted with confidence.

The proposal — particularly the immunity provision — represents a  
major victory for the White House after months of dispute.

“I think the White House got a better deal than even they had hoped to  
get,” said Senator Christopher S. Bond, Republican of Missouri, who  
led the negotiations.

The White House immediately endorsed the proposal, which is likely to  
be voted on in the House on Friday and in the Senate next week.

While passage seems almost certain in Congress, the plan will  
nonetheless face opposition from lawmakers on both political wings,  
with conservatives asserting that it includes too many checks on  
government surveillance powers and liberals asserting that it gives  
legal sanction to a wiretapping program that they maintain was illegal  
in the first place.

Senator Russ Feingold, Democrat of Wisconsin, who pushed  
unsuccessfully for more civil liberties safeguards in the plan, called  
the deal “a capitulation” by his fellow Democrats.

But Democratic leaders, who squared off against the White House for  
more than five months over the issue and allowed a temporary  
surveillance measure to expire in February, called the plan a hard- 
fought bargain that included needed checks on governmental abuse.

“It is the result of compromise, and like any compromise is not  
perfect, but I believe it strikes a sound balance,” said  
Representative Steny H. Hoyer of Maryland, the House Democratic leader  
who helped draft the plan.

Perhaps the most important concession that Democratic leaders claimed  
was an affirmation that the intelligence restrictions were the  
“exclusive” means for the executive branch to conduct wiretapping  
operations in terrorism and espionage cases. Speaker Nancy Pelosi had  
insisted on that element, and Democratic staff members asserted that  
the language would prevent Mr. Bush, or any future president, from  
circumventing the law. The proposal asserts “that the law is the  
exclusive authority and not the whim of the president of the United  
States,” Ms. Pelosi said.

In the wiretapping program approved by Mr. Bush after the Sept. 11  
attacks, the White House asserted that the president had the  
constitutional authority to act outside the courts in allowing the  
National Security Agency to focus on the international communications  
of Americans with suspected ties to terrorists and that Congress had  
implicitly authorized that power when it voted to use military force  
against Al Qaeda.

Among other important provisions in the 114-page plan, Democrats also  
pointed to requirements that the inspectors general of several  
agencies review the security agency’s wiretapping program, that the  
government obtain individual court orders to wiretap Americans who are  
outside the United States and that the secret court overseeing  
wiretaps give advance approval to the government’s procedures for  
wiretapping operations.

Under a temporary plan that Congress approved last year, the court had  
to approve those procedures only months after wiretapping had begun.

The wiretapping plan agreed upon Thursday would expire at the end of  
2012, unless Congress renewed it.

The proposal also seeks to plug what the Bush administration  
maintained was a dangerous loophole by no longer requiring individual  
warrants for wiretapping purely foreign communications, like phone  
calls and e-mail messages that pass through American  
telecommunications switches. The government would now be allowed to  
use broad warrants to eavesdrop on large groups of foreign targets at  
once.

In targeting and wiretapping Americans, the administration would have  
to get individual court orders from the intelligence court, but in  
“exigent” or emergency circumstances it would be able to go ahead for  
at least seven days without a court order if it asserted that  
“intelligence important to the national security of the United States  
may be lost.”

White House officials said that the new emergency provisions applied  
only to foreign wiretapping, but Democratic officials said they  
interpreted the proposal to apply to domestic surveillance operations  
as well.

Under the current law, the government can conduct an emergency wiretap  
for only three days, but Democrats maintained that the new seven-day  
allowance included tougher standards for the government to meet in  
asserting an emergency.

The arcane details of the proposal amount to a major overhaul of the  
landmark surveillance law known as the Foreign Intelligence  
Surveillance Act, which Congress passed in 1978 after the abuses of  
the Watergate era. But much of the debate over the bill in the last  
six months has been dominated by the separate question of whether to  
protect the phone companies from legal liability for their role in the  
eavesdropping program.

On that score, the bipartisan proposal marks a clear victory for the  
White House and the phone companies.

The proposal allows a district judge to examine what are believed to  
be dozens of written directives given by the Bush administration to  
the phone companies after the Sept. 11 attacks authorizing them to  
engage in wiretapping without warrants. If the court finds that such  
directives were in fact provided to the companies that are being sued,  
any lawsuits “shall be promptly dismissed,” the proposal says.

Even Democratic officials, who had initially opposed giving legal  
immunity to the phone companies, conceded there was a high likelihood  
that the lawsuits would have to be dismissed under the standards set  
out in the proposal. That possibility infuriated civil liberties  
groups, which said the cursory review by a district judge would amount  
to the de facto death of the lawsuits.

“No matter how they spin it, this is still immunity,” said Kevin  
Bankston, a senior lawyer for the Electronic Frontier Foundation, a  
pro-privacy group that is a plaintiff suing over the wiretapping  
program. “It’s not compromise; it’s pure theater.”