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US: House Passes Bill on Wiretap Powers


by ERIC LICHTBLAU and DAVID STOUTThe New York Times
June 21st, 2008

WASHINGTON — The House on Friday overwhelmingly approved a bill overhauling the rules on the government’s wiretapping powers and conferring what amounts to legal immunity to the telephone companies that took part in President Bush’s program of eavesdropping without warrants after the terrorist attacks of Sept. 11, 2001.

The bill cleared the House by 293 to 129, with near-unanimous support from Republicans and substantial backing from Democrats. It now goes to the Senate, which is expected to pass it next week by a wide margin.

“Our intelligence officials must have the ability to monitor terrorists suspected of plotting to kill Americans and to safeguard our national security,” said Representative John A. Boehner of Ohio, the Republican minority leader. “This bill gives it to them.”

The Democratic majority leader, Representative Steny H. Hoyer of Maryland, was considerably more restrained in his support of the bill, calling it the best compromise possible “in the current atmosphere.”

The issue has bitterly divided Democrats, as a sampling of remarks after the vote made clear. “The FISA legislation we approved gives our intelligence community the tools it needs and the public the civil liberty protections it deserves,” said Representative Rahm Emanuel of Illinois, chairman of the House Democratic Caucus. “While this bill isn’t perfect, the perfect should never be the enemy of the good. I applaud the Democrats and Republicans who reached this compromise and produced legislation that earned support from both sides of the aisle.”

But Representative Jerrold Nadler, a New York Democrat who heads the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties, called the bill “a fig leaf,” and one that “abandons the Constitution’s protections and insulates lawless behavior from legal scrutiny.”

The vote followed months of wrangling and came a day after Democratic and Republican leaders reached agreement.

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 by the Senate, 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 on Thursday.

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.

President Bush said on Friday morning that he was pleased about the deal and the impending passage in Congress. “The enemy that struck us on Sept. 11 is determined to strike us again,” Mr. Bush said, urging quick action by the Senate.

The bill was supported by 188 Republicans and 105 Democrats in the House, while 128 Democrats and a single Republican voted against it. The contrary Republican was Representative Tim Johnson of Illinois, described by the Almanac of American Politics as a lawmaker “with maverick tendencies,” as demonstrated by his opposition to much of the Bush administration’s record on the environment.

While final passage seems almost certain, the plan will nonetheless face continued 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.

The Senate Democratic majority leader, Harry Reid of Nevada, said he would still resist the immunity section of the bill. “I’m going to try real hard to have a separate vote on immunity,” Mr. Reid said on Friday in an interview to be aired this weekend on Bloomberg Television’s “Political Capital with Al Hunt.”

“Probably we can’t take that out of the bill, but I’m going to try,” Mr. Reid said.

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

But House 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 Mr. Hoyer, 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.”





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