Democrats Agree to Expand Domestic Spying, Grant Telecoms Amnesty

By Ryan Singel / June 19, 2008

Breaking months of acrimonious deadlock, House and Senate leaders from both parties have agreed to a bill that gives the nation’s spy agencies the power to turn a wide swath of domestic communication companies into intelligence-gathering operations, and that puts an end to court challenges to telecoms such as AT&T that aided the government’s secret, five-year warrantless wiretapping program.

Civil liberties proponents quickly blasted the deal.

“The proposed FISA deal is not a compromise; it is a capitulation,” said Wisconsin Democratic Senator Russ Feingold, the only senator who voted against the Patriot Act in 2001. “The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home.”

The deal marks a huge, though belated, victory for a lame-duck White House, which fought a pitched, hyperbolic battle to expand its legal wiretapping powers after being busted targeting Americans without warrants.

Despite that desire for expanded spying powers, the president threatened to veto any bill that did not give amnesty to the telecoms that helped with program, which has been declared illegal by a secretive U.S. surveillance court.

The bill (.pdf) could be voted on as soon as Friday in the House, given its backing by House Majority Leader Steny Hoyer, who in February organized a high-stakes showdown with the president over a substantially similar bill. The Senate would likely also quickly pass the bill, despite already vocal opposition from the ACLU, left-leaning bloggers, as well as Sens. Christopher Dodd (D-Connecticut) and Patrick Leahy (D-Vermont).

Under the proposal, the intelligence community will be able to issue broad orders to U.S. ISPs, phone companies and online communications services like Hotmail and Skype to turn over all communications that are reasonably believed to involve a non-American who is outside the country. The spy agencies will not have to name their targets or get prior court approval for the surveillance.

Under the longstanding rules of the Foreign Intelligence Surveillance Act, the government was free to engage in dragnet wiretapping outside the United States, but in order to tap communications inside the country, the government needed court approval and individualized warrants if an American’s communications would be caught.

Additionally, the bill grants amnesty to the nation’s telecoms that are being sued for allegedly breaking federal wiretapping laws by turning over billions of Americans’ call records to government data-mining programs and giving the government access to internet and phone infrastructure inside the country. The bill strips the right of a federal district court to decide whether the companies violated federal laws prohibiting wiretapping without a court order.

Instead, the attorney general would need only certify to the court either that a sued company did not participate, or that the government provided some sort of written request to the companies that said that the president authorized the program and that his lawyers deemed it to be legal. That would be presented to federal district court Judge Vaughn Walker, who is overseeing the more than 40 consolidated cases against the telecoms. Walker’s authority would be limited to judging whether the preponderance of the evidence is that the companies did get a written request, and if he finds that to be true — as the Senate Intelligence Committee has already publicly stated — he must dismiss the cases.

That’s immunity, and it’s unconstitutional, according to the ACLU’s Caroline Fredrickson.

“The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal,” Fredrickson said in a written statement. “That’s not accountability. Loopholes and judicial theater don’t do our Fourth Amendment rights justice.”

Hoyer, under pressure from so-called Blue Dog Democrats wanting to avoid being labeled soft on terrorism in the fall campaigns, justified the bill as a necessary compromise.

“It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance,” Hoyer said in a press release announcing the deal.

That’s a significant change for Hoyer, who in March in a House floor speech opposed blanket immunity, saying “I submit that a reasonable — responsible — Congress would not seek to immunize conduct without knowing what conduct or misconduct it is immunizing.”

The bill itself oddly admits that the government’s surveillance activities included more than the previously admitted “Terrorist Surveillance Program.” That program, admitted by the president after The New York Times revealed it in December 2005, targeted Americans to intercept their international phone calls and e-mails without getting court approval. In a provision authorizing an oversight investigation, the bill refers to the “President’s Surveillance Program,” of which the so-called TSP was just one part.

That all but confirms what many have reported and suspected: that there was much more unilateral surveillance than the president or his lawyers have ever admitted.

The current immunity language differs very little from the proposal that was debated in February and March, according to Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation — which is arguing the leading case against the nation’s telecoms.

“The current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review,” Bankston said.

The top Republican on the Senate Intelligence Committee — a longtime immunity proponent — sounded a more upbeat note.

“Today we reached a bipartisan solution that will put the intelligence community back in business, protect American families from attack and protect our civil liberties,” said Sen. Kit Bond of Missouri.

That’s despite a provision in the bill that orders the inspectors general of the Justice Department and various intelligence agencies to spend a year working on a report about what the extent of the government’s secret surveillance programs were, and what their legal rationale was.

That report would not be delivered to Congress until well after the White House has a new inhabitant.