Deal is reached on eavesdropping bill

Measure retains telecom protection

June 20, 2008|By Bradley Olson and Matthew Hay Brown | Bradley Olson and Matthew Hay Brown,Sun reporters

WASHINGTON - The White House and senior members of Congress reached a deal yesterday on a long-stalled overhaul of the nation's eavesdropping laws, leaving in place a controversial provision that largely protects telecommunications companies from liability for their roles in past information gathering.

The proposal - the most significant revision of the nation's intelligence laws in 30 years - in many ways mirrors the warrantless wiretapping program President Bush secretly began using shortly after the Sept. 11 terrorist attacks in 2001. But supporters say it also creates a legal framework for spying activities that will include significant oversight from Congress and the federal courts.

The legislation would give broad approval to monitor foreign sources, including those whose conversations extend to the United States. To address the inevitable spying that will occur on Americans in these communications, the legislation includes a number of provisions lawmakers believe will safeguard the privacy and rights of U.S. citizens.

To ensure that eavesdropping is focused on foreigners, for example, the legislation requires that in most cases the American's part of the communication be redacted and the person's identity be concealed before a transcript goes to other intelligence agencies for review.

The House is expected to debate the bill today.

House Majority Leader Steny H. Hoyer, a Maryland Democrat who emerged as a behind-the-scenes deal maker on the legislation, said it "balances the needs of our intelligence community with Americans' civil liberties and provides critical new oversight and accountability requirements."

Civil liberties groups, privacy advocates and some congressional Democrats denounced the compromise because the immunity provision would largely insulate telecommunications companies from nearly 40 pending lawsuits. The new law, they said, would not only let the companies off the hook too easily, it would also set up standards for intelligence collection that could violate constitutional protections.

"Congress is poised to once again pass disastrous surveillance legislation, now upping the ante with a thinly veiled giveaway to some major campaign donors," said Caroline Fredrickson, director of the ACLU's Washington Legislative Office, echoing a common criticism that the bill is a product of lobbying by special interests. "This bill allows for mass and untargeted surveillance of Americans' communications."

But the most pointed criticism continued to center on the immunity the bill provides telecommunications companies from civil liability suits. Those suits could be thrown out if a district court finds "substantial evidence" that companies believed they were following the law when they assisted the government in eavesdropping. In some cases, companies said they received letters asserting presidential authorization for the surveillance.

Although high-ranking members of Congress from both parties praised the deal as the best possible compromise, a number of powerful Democrats remain staunchly opposed to any bill that could upend the lawsuits. Many believe that the suits could disclose valuable details about how the program began.

This "is not a bill I can support," said Senate Judicial Committee Chairman Patrick J. Leahy of Vermont. "I have said since the beginning of this debate that I would oppose a bill that did not provide accountability for this administration's six years of illegal, warrantless wiretapping."

Given the continued debate, the bill's prospects remain unclear. But supporters - including administration officials and members of Congress from both parties - said they were confident it will pass.

"This negotiation took a lot of time," said the House Republican whip, Roy Blunt of Missouri. "Nobody quickly gave any ground. But I think it's fair to say that we gave some; they have some additional oversight procedures that were not part of any earlier legislation. ... The bill will pass. The White House is on board."

The new law would expire in 2012, a provision many lawmakers said would allow another administration to play a role in intelligence policy.

To begin surveillance activities, the director of national intelligence and the attorney general would have to annually submit to the Foreign Intelligence Surveillance Court for review and approval "targeting procedures" that show how the National Security Agency's eavesdropping is only intending to monitor communications between foreigners.

In what supporters described as "rare cases," in which "critical intelligence could be lost," eavesdropping could begin before a court has an opportunity to authorize it. In such cases, officials would have to submit their surveillance plan within a week and the court would rule within a month. The law also would allow intelligence agencies to appeal the decision.

Critics describe this passage as a major loophole that would allow some wiretapping to proceed for as much as two months without a warrant.

"Meaningful judicial oversight would mean that surveillance never begins unless a court has determined that it is lawful," said Greg Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology. "We have gone full circle from a notion that courts authorize surveillance to a court never looking at the procedures before intelligence collection begins. That's not the way to protect Americans' privacy rights."

But the bill's supporters said there were more than enough safeguards in place to protect privacy rights and civil liberties, and in some cases, even more. One such provision extended the protections on Americans abroad, so that a U.S. citizen studying in London would have the same rights as when he or she was at home.

bradley.olson@baltsun.com

matthew.brown@baltsun.com

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