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CONGRESS

I Spy ... a White House Win

The Bush administration largely gets what it wants in the pending legislation overhauling electronic surveillance rules.

by Helen Fessenden

Sat. Jul 5, 2008


In a rare convergence of opinion, congressional conservatives and liberals have found something to agree on in the fierce debate over electronic surveillance: The White House is about to receive a bill very much to its liking.

Both camps say that the legislation overhauling the 1978 Foreign Intelligence Surveillance Act--cleared by the House on June 20 and expected to win Senate approval next week--closely tracks a Bush administration-backed version that the Senate passed in February with solid GOP support but deep divisions among Democrats.

"What we have before us ... is basically the Senate bill all over again," Sen. Christopher (Kit) Bond, R-Mo., the ranking member on the Senate Select Intelligence Committee, said in a June 25 floor speech. "There is not much that is significantly different, save some cosmetic fixes that were requested by [Democrats]." Liberal Sen. Ron Wyden, D-Ore., agreed, noting, "We made some changes, but they are too little, too late. The bill will let the executive branch self-certify its actions."

The final version of the legislation is the product of months of bipartisan House-Senate negotiations that were threatening to stretch into the height of the political campaign season. The most controversial provision would provide legal protections to telecommunications companies that participated in the National Security Agency's warrantless wiretapping program. The 40-odd privacy lawsuits pending against the companies would be referred to the U.S. District Courts where they were filed and, if the telecoms can prove that the administration authorized the surveillance, the suits would be dismissed.

Critics point out that the companies do not have to prove that the administration's authorizations comported with the underlying 1978 FISA law, which requires warrants for domestic spying from the secret FISA court except in narrow circumstances. Instead, the firms have to show only that the authorizations were issued. Since the telecoms, in most instances, did receive the authorizations, according to a Senate Intelligence Committee report, both Democrats and Republicans predict that most of the suits will be dropped.

Before voting on final passage, the Senate on July 8 plans to take up three amendments targeting legal immunity for the telecoms. An amendment sponsored by Sens. Russell Feingold, D-Wis., Christopher Dodd, D-Conn., and Patrick Leahy, D-Vt., would strip the immunity provision entirely. It is expected to fall short of the 50 votes needed for approval, based on a similar attempt in February that was defeated 31-67. Another amendment, by Sen. Arlen Specter, R-Pa., would raise the bar for dismissing the lawsuits by requiring that the courts also weigh the constitutionality of the surveillance program; 60 votes will be required for approval.

The third amendment, sponsored by Sens. Jeff Bingaman, D-N.M., Bob Casey, D-Pa., and Specter, would modify a provision that Democrats insisted on in the negotiations: a requirement that the inspectors general of the Justice and Defense departments, as well as the directors of national intelligence and the National Security Agency, review the legality of the NSA program within a year of the law's enactment.

The amendment would move the IG review process ahead of the court review of the lawsuits, by mandating that Congress would have 90 days to go over the IG report after it is filed and before the courts take up the immunity issue. It's unlikely that the amendment will win the 60 needed votes, but if it does pass, it could have sweeping implications for the lawsuits.

"The review would make certain things public that would ensure the court had a record before it can adjudicate," said Lisa Graves, deputy director of the Center for National Security Studies, a civil-liberties watchdog. "If Congress approves this bill without the Bingaman provision, and then these audits show that the administration wasn't forthcoming, Congress may well have buyer's remorse. It will look like it did not act responsibly."

None of those amendments would change the bill's first title, which substantially expands the administration's powers to conduct warrantless surveillance on communications that may swing through U.S. borders, provided that the target is "reasonably believed" to be abroad. At Democrats' urging, several civil-liberties protections were included that the White House previously opposed, including a requirement for warrants on Americans targeted abroad and language ensuring that the FISA statute is the exclusive law governing electronic surveillance.

For now, liberal Democrats remain pessimistic. "This is an uphill march," said Wyden, an Intelligence panel member. "I can count the votes. I do think a flawed bill will be signed into law."

Sen. Jay Rockefeller, D-W.Va., the Intelligence Committee chairman who has sided with Republicans to keep the immunity provision in, also predicts an overwhelming Senate vote for final passage, "probably in the 70s" range. "Most lawsuits will be dismissed," he added, but suggested that the courts would throw out the suits as frivolous anyway. "I don't think they really had anything to do with the NSA program."

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