Deal reached on wiretap expansion, telecom immunity
Nick Juliano
Published: Thursday June 19, 2008

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Wary of making the debate between liberty and security into a campaign issue, Congressional Democrats appear ready to retreat in their years-long effort to instill some sort of accountability on the Bush administration and its enablers in the telecommunications industry for their extra-legal surveillance of Americans.

Congressional leaders have reached an accord with the White House on the update to a controversial surveillance law that essentially legalizes the National Security Agency's warrantless wiretapping program and seems likely to let off the hook the phone companies that facilitated it.

Under the bipartisan measure, a court could dismiss a suit if there is written certification that the White House asked a phone company to participate in the warrantless surveillance program Bush began shortly after the September 11 attacks and assured the company it was legal.

Sen. Russ Feingold (D-WI), who has been among the most vocal critics of the administration's apparent disdain for the Constitution, called the latest deal "a capitulation."

“The proposed FISA deal is not a compromise; it is a capitulation. 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. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.”

A vote on the bill could come as early as Friday in the House of Representatives, which was expected to approve it. It would then be sent to the Democratic-led Senate where even Democratic foes of the measure concede it would be passed and then be sent to Bush to sign into law.

Negotiations over the bill, which updates the 1978 Foreign Intelligence Surveillance Act, were conducted by House Majority Leader Steny Hoyer and Minority Whip Roy Blunt along with the top members of the Senate Intelligence Committee, Sens. Jay Rockefeller (D-WV) and Kit Bond (R-MO). Telecom lobbyists also reportedly helped craft the bill.

Hoyer said the bill "balances" the needs of agencies like the NSA with Americans' civil liberties, while he insisted it provided "critical new oversight and accountability" aimed at the administration.

"It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance," he said.

The FISA Amendments Act expires in 2012, which is two years earlier that Republicans had originally hoped.

A number of Democratic lawmakers along with civil liberties groups have opposed the measure, saying courts should first determine what the phone companies did before dismissing any suits.

Members of the two congressional judiciary committees, who have been most skeptical of the administration's national security claims with regards to its extra-legal wiretapping program, appear to have been excluded from the primary negotiations.

Sen. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee who last year introduced his own update that would not grant phone companies immunity, said he could not support the new measure, although he allowed that it was an improvement over a bill the Senate passed earlier this year.

"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," he said in an e-mailed statement. "This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program. Therefore, it lacks accountability measures that I believe are crucial."

But Bush and others have argued that these companies should be thanked, not punished, for agreeing to help protect the United States.

Chief congressional negotiators released a copy of the bill, which would amend the 1978 Foreign Intelligence Surveillance Act, which requires the government receive secret-court approval to conduct surveillance on foreign targets in the United States.

The full bill can be viewed here (pdf).

With wire reports