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Flashpoints Over Foreign Surveillance
by Chris Strohm
After months of partisan rhetoric and behind-the-scenes wrangling, Senate and House lawmakers have finally zeroed in on where they agree and disagree over legislation to regulate the Bush administration's spying activities.
Three bills in Congress would rewrite the Foreign Intelligence Surveillance Act. The House last week passed the Democratic FISA bill on a mostly party-line vote. Democrats on the Senate Judiciary Committee followed suit by approving their bill under a strictly party-line vote. And the Senate Intelligence Committee approved a measure by a bipartisan vote last month.
The bills contain several fundamental similarities. None, for example, would require the government to get individual court warrants to monitor the telephone calls and e-mails of suspected foreign terrorists, even if they have incidental communications with a U.S. citizen or legal permanent resident. Instead, they would require the government to get warrants if the targets of surveillance are U.S. residents inside the United States. All of the measures also would increase the role that the secret FISA court has in reviewing the government's spying activities.
"The basic idea is there's no individual warrants for foreign targets in both the House and the Senate bills," a senior House Democratic aide said. "There's a sense that the court should be involved in reviewing procedures. At a certain level, they look very similar."
The Battle Over Telecom Immunity
Lawmakers and the White House do have major differences over several key provisions, even if some appear to be hair-splitting minutia. The White House, for example, has threatened to veto what Minority Leader John Boehner of Ohio called the "irresponsible" House bill. "The president will veto this dangerous proposal, and House Republicans have more than enough votes to sustain it," he said. The White House has indicated it would veto the Senate Judiciary bill, too.
By far, the most divisive flashpoint is whether telecommunications companies should be shielded from lawsuits for helping the Bush administration spy on U.S. citizens without warrants. About 40 lawsuits have been filed against the companies.
The Senate Intelligence bill would grant the carriers retroactive legal liability for spying activities conducted from the time of the Sept. 11, 2001, terrorist attacks until a spying program conducted without warrants was put under the purview of the FISA court last January. "In the end, I believe that a majority of the Senate will conclude that immunity is not only the right thing to do but also necessary to protect the government's longstanding partnership with private companies," said Intelligence Chairman John (Jay) Rockefeller, D-W.Va.
The House bill and Senate Judiciary measure are silent on the matter. "While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable," said Judiciary Chairman Patrick Leahy, D-Vt. "Passing a law to whitewash the administration's undermining of another law would be a disservice to the American people and to the rule of law."
Sens. Russell Feingold, D-Wis., and Christopher Dodd, D-Conn., have vowed to block any bill that includes retroactive legal immunity.
The issue will be fought on the Senate floor in December. But in an effort to craft a bipartisan compromise, Judiciary ranking Republican Arlen Specter of Pennsylvania and Sen. Dianne Feinstein, D-Calif., are working on legislation under which the government would be substituted as the defendant for the companies in the lawsuits. The deal would allow the lawsuits to proceed. The senators said, however, that they are trying to craft substitution language that would prevent the administration from dismissing lawsuits on grounds that they compromise state secrets.
Wrangling Over 'Basket Warrants' And More
A handful of other differences have emerged between lawmakers. The House bill, for example, would require the administration to first get approval from the FISA court for "basket warrants" before surveillance could be conducted against foreign terrorist suspects.
The warrants could cover multiple targets or an entire terrorist organization and be good for up to a year. The legislation, however, contains a provision under which emergency surveillance could be conducted for up to 45 days before court approval is given.
The Judiciary and Intelligence bills, on the other hand, would allow the administration to begin surveillance without first having to get court approval. Instead, the administration would have to submit its surveillance procedures to the court for review after the collection started. Gregory Nojeim, special counsel at the Center for Democracy and Technology, said he expects Feingold to offer an amendment to the final Senate bill in order to require prior court approval.
The House bill also would stipulate that surveillance could be conducted only to obtain information on "terrorism, espionage, sabotage and threats to national security." The Senate bills have a much broader scope, allowing collection of all "foreign intelligence."
The Judiciary bill contains the most forceful language to specify that FISA would be the exclusive law under which the administration could conduct surveillance for foreign intelligence purposes. The White House said the language could bar the administration from using secret subpoenas known as national security letters and "other well-established investigative tools."
The Judiciary language also could prevent the administration from using grand juries to obtain foreign intelligence and would create criminal penalties for government officials who violate the law, a Republican Judiciary aide said. The language further says FISA is the exclusive means for acquiring "communications information," a phrase that Republicans argue is new and undefined.
"They managed to take a bipartisan bill out of the Intelligence Committee and turn it into a train wreck that lost every Republican on Judiciary," the aide said. "This bill is a disaster.
"Depending on how that language plays out, you could be cutting out ways of gathering information that has been crucial in the past to gathering foreign intelligence information," he added. "You'd actually be subject to criminal prosecution if you are an investigator using grand-jury subpoenas to gather foreign intelligence information."
The Other Dividing Lines
Lawmakers also want Congress to re-evaluate the FISA law in the near future but are divided over how soon that should be. Congress would have to review the law in six years under the Intelligence bill; four years under the Judiciary bill; and two years under the House bill.
The House bill and Senate Judiciary legislation also would require the Justice Department's inspector general to investigate the administration's warrantless spying program, while the Intelligence bill is silent on the matter.
The bills differ on three other points: whether the administration can continue surveillance if a FISA judge rules it should stop and an appeal is pending; whether information collected through surveillance can be used if the FISA court rules that the targeting procedures are inappropriate; and whether warrants are needed to conduct surveillance against U.S. residents abroad. Lawmakers and privacy experts agree, however, that all of those circumstances hardly ever occur.
CDT and other privacy groups favor the House bill. CDT believes it would achieve "sufficient judicial authorization and control of intelligence surveillance that impacts Americans," Nojeim said. "The other bills -- particularly the Senate Intelligence Committee bill -- fall short."
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