U.S. House Passes Wiretap Bill Protecting Telecoms

From Free Internet Press

June 20, 2008

The U.S. House Friday overwhelmingly approved a sweeping new surveillance law that effectively would shield telecommunications companies from privacy lawsuits for cooperating with the Bush administration’s warrantless wiretapping program.

Ending a year-long battle with President Bush, the House approved, 293 to 129, a re-write of the 1978 Foreign Intelligence Surveillance Act (FISA) that extends the government’s ability to eavesdrop on espionage and terrorism suspects while providing a legal escape hatch for AT&T, Verizon Communications and other telecommunication firms. The companies face more than 40 lawsuits that allege they violated customers’ privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

Before the vote, President Bush Friday lauded Congress for reaching agreement on the legislation, saying it was vital to help thwart new terrorist attacks.

In a brief statement in the White House Rose Garden, Bush also hailed House passage yesterday of a bipartisan bill that funds the wars in Iraq and Afghanistan into 2009 and would allow veterans of those wars to receive increased education benefits. He had previously opposed the veterans’ education provision and new domestic spending included in the war-funding package, threatening a veto.

A majority of House Democrats opposed the surveillance legislation. Some argued that the new law would lead to illegal surveillance of Americans, while others contended it was a principled compromise that provided greater civil liberties than a version favored earlier this year by the White House and Senate. “This bill scares me to death,” said Rep. Barbara Lee (D-California). Some Democrats said their left-wing supporters were pushing them to oppose the new law, particularly because of its immunity provisions.

“My constituents are saying ‘don’t cave in’,” said Rep. Jane Harman (D-California), the former chairman of the Permanent Select Committee on Intelligence. Harman noted that the standoff with Bush last year over FISA had resulted in the Protect America Act, a temporary bill without several key provisions that Friday’s legislation contained.

“The compromise replaces bad law…with law that actually improves FISA,” said Harman.

House Speaker Nancy Pelosi (D-California) gave a lengthy floor speech that included a litany of reasons to oppose the legislation. She said the telecommunication companies “come out of this with a taint” for their actions and should not receive immunity but, Pelosi argued, the bill also firmly rejects President Bush’s argument that a war-time chief executive has the “inherent authority” on some surveillance activity necessary to fight terrorists. It restores the legal notion that the FISA law is the exclusive rule on surveillance.

“There is no inherent authority of the president to do whatever he wants. This is a democracy,” said Pelosi, announcing her support for the bill.

One hundred eighty-eight Republicans and 105 Democrats voted for the bill.

Bush said Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey has told him the surveillance legislation “is a good bill” that would help U.S. intelligence learn enemy plans for new attacks on the United States. He said it ensures that telecommunications companies will be “protected from liability for past or future cooperation” with the federal government.

House and Senate leaders agreed Thursday on the surveillance legislation, handing Bush one of the last major legislative victories he is likely to achieve.

The breakthrough on the legislation came hours after the White House agreed to Democratic demands for domestic spending additions to the emergency war funding bill. Taken together, the bills – two of the last major pieces of legislation to be approved by Congress this year – suggest that Bush still wields considerable clout on national security issues but now must acquiesce to Democratic demands on favored domestic priorities to secure victory.

The war spending bill, for example, includes $162 billion for the conflicts in Iraq and Afghanistan and an additional $95 billion worth of domestic spending on programs such as unemployment insurance and higher education benefits for veterans. The war-funding and domestic provisions of the bill were voted on separately. Bush, who had threatened for months to veto the legislation, said he will sign it.

He previously had resisted any measure that would add domestic spending to his $108 billion war-funding request. He also had opposed the expanded G.I. Bill, which the White House said was too costly and could further strain the military by encouraging members to leave the service rather than reenlist.

Leading Democrats acknowledged that the surveillance legislation is not their preferred approach, but they said their refusal in February to pass the version supported by the Bush administration paved the way for victories on other legislation, such as the war funding bill.

“When they saw that we were unified in sending that bill rather than falling for their scare tactics, I think it sent them a message,” said Pelosi. “So our leverage was increased because of our Democratic unity in both cases.”

Under the surveillance agreement, which is expected to be approved next week by the Senate, telecoms could have privacy lawsuits thrown out if they show a federal judge that they received written assurance from the Bush administration that the spying was legal.

That part of the bill is a compromise by Republicans and the Bush administration, which had opposed giving federal judges any significant role in granting legal immunity to the phone companies.

The legislation also would require court approval of procedures for intercepting telephone calls and e-mails that pass through U.S.-based servers – another step that the White House and Republican lawmakers previously resisted.

“It is the result of compromise, and like any compromise it is not perfect, but I believe it strikes a sound balance,” said House Majority Leader Steny H. Hoyer (Maryland), the lead Democratic negotiator in talks between lawmakers and the White House.

Overall, the deal appears to give intelligence agencies much of what they had sought in a new surveillance law.

White House spokesman Tony Fratto called the measure “a bipartisan bill” that “will give the intelligence professionals the long-term tools they need to protect the nation, and liability protection for those who may have assisted the government after the 9/11 attacks.”

The sharpest critics of the administration’s surveillance policies were not mollified. Sen. Russell Feingold (D-Wisconsin) said the legislation “is not a compromise; it is a capitulation.”

“Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity,” he said.

Caroline Frederickson, a lobbyist for the American Civil Liberties Union, said, “The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal.”

Senate Majority Leader Harry M. Reid (D-Nevada), who has opposed retroactive immunity for the companies, said yesterday that he was reviewing the legislation. “There have been, from what I see, some improvements,” he said yesterday. “There’s good things in this bill.”

Other Democrats said the bill could be more popular than a version approved in February that 20 Senate Democrats favored.

Pelosi said the most important part of the deal is “exclusivity” language that makes clear that the surveillance law is the only legal authority when it comes to government spying. In defending its warrantless spying program in the past, Bush administration lawyers argued that the commander in chief’s warmaking powers trumped such considerations.

Thursday’s agreement ended a four-month standoff that began after House leaders refused to pass a Senate-approved bill that would have made permanent a temporary surveillance law enacted last August. According to the administration, some wiretap orders that allowed the surveillance of foreign terrorism suspects would have begun to expire two months from now unless new legislation was approved.

The negotiations underscored the political calculation made by many Democrats who were fearful that Republicans would cast them as soft on terrorism during an election year. Earlier this week, Hoyer told reporters that many Democrats, particularly those from conservative districts, were prepared to side with Republicans and approve the Senate version of the bill if talks broke down completely.

The immunity would cover companies that helped the government between Sept. 11, 2001, and Jan. 17, 2007, when the warrantless surveillance program was brought under the authority of the secret Foreign Intelligence Surveillance Court, and continues into the future. The earlier program had allowed the National Security Agency to monitor communications to and from the United States without court oversight.

The retroactive legal protection would apply only in lawsuits filed against telecommunications firms. Any lawsuits against the government would proceed and would have to be defended by other means.

FCJ Editor

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