Falling Short In Spying Safeguards On Friday, the House passed "
the most significant revision of surveillance law in 30 years," and the Senate is expected to soon follow suit. House leaders insisted the bill was a "
compromise" with conservatives, but as the New York Times noted, it was actually "
a major victory for the White House after months of dispute." While progressives succeeded in forcing the White House to accept some important concessions, the deal fails to give the Foreign Intelligence Surveillance Court the
authority to protect law-abiding Americans from being spied on by their government. It also essentially
shields telecoms from civil lawsuits for their participation in the Bush administration's warrantless wiretapping program after 9/11 and almost certainly ensures that the
approximately 40 lawsuits that have been filed against telecoms for complying with the administration's illegal spying
will be dismissed.
RESTRICTIONS ON 'CIRCUMVENTING THE LAW': The bill is not without its positive features, including prior court review in most cases of the government's procedures for selecting surveillance targets, "
a prohibition on 'reverse targeting' of Americans, and a new requirement of probable cause for surveillance of Americans abroad." It also contains an important affirmation stating that the intelligence restrictions are the "
exclusive" means by which the president can conduct surveillance, which House Speaker Nancy Pelosi (D-CA) said would prevent Bush and future presidents "from circumventing the law." Despite these provisions, the bill -- set to expire in 2012 unless Congress renews it -- is, overall, a "
major disappointment" according to Center for American Progress Senior Fellow Mark Agrast. It significantly expands the government's powers to spy on terrorism suspects and "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."
IMMUNITY FOR LAWBREAKING: The most
controversial aspect of the new bill is the immunity it provides for telecomms. Under this bill, a federal district court would be responsible for reviewing "
certifications from the attorney general saying the telecommunications companies received presidential orders telling them wiretaps were needed to detect or prevent a terrorist attack. If the paperwork is in order, the judge would dismiss the lawsuit." This process appears to be nothing more than a formality; House Minority Whip Roy Blunt (R-MO) predicted that all the lawsuits "will be dismissed." Sen. Christopher Bond (R-MO) speculated that "
the White House got a better deal than even they had hoped to get." Agrast also noted that the legislation still fails to restore the role of the Foreign Intelligence Surveillance Act court. "Now, instead of determining whether probable cause exists for the issuance of a surveillance order, [it] will be reduced to
reviewing the adequacy of the surveillance procedures established by the Bush administration."
SEPARATE SENATE IMMUNITY VOTE?: The Senate will likely pass the House's legislation since it already approved immunity for telecoms
last February. At the time, House leaders "offered to extend temporarily the other provisions of the eavesdropping law, the Protect America Act, while the immunity issues were debated." The deal, however, was rejected by conservatives and led to the current "compromise" bill. Senate Majority Leader Harry Reid (D-NV) last week told Bloomberg TV that he will "
try to have a separate vote on immunity" when the legislation comes before his chamber. "Probably we can't take that out of the bill, but
I'm going to try," he said. This debate will also focus the spotlight on the two presidential contenders. Sen. Barack Obama (D-IL) has indicated that he plans to vote for the bill, but added that he opposes telecom immunity and "
will work in the Senate to remove this provision so that we can seek full accountability for past offenses." Sen. John McCain (R-AZ) also plans to vote for the bill, but has made no apologies about providing immunity. The McCain campaign has explained that "companies who assist the government in good faith
should not be punished." He
voted for the Senate's immunity bill in February. McCain has also attempted to give the Bush administration a pass on its warrantless National Security Agency surveillance program,
exposed in December 2005. "It's
ambiguous as to whether the president acted within his authority of not," he claimed, directly contradicting the August 2006 ruling of U.S. District Judge Anna Diggs Taylor, which declared the program
unconstitutional.
INTENSIVE LOBBYING CAMPAIGN: The White House was clearly pleased with the House's bill, since officials had worked for months to obtain telecom immunity. On Friday, President Bush called it a "
good bill." Director of National Intelligence Michael McConnell even allowed the Bush administration to put him in the "
unusual role of intelligence community lobbyist" in order to pass this legislation; traditionally, intelligence chiefs have been expected to "remain insulated from policy issues." Throughout this process, there has been little compromise or cooperation by White House officials, who worked closely with the telecom industry. Not surprisingly, the Bush administration refused to publicly release "internal e-mails, letters and notes showing
contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill." According to CQ, telecoms and their business allies spent more than "
$14 million lobbying in just the first three months of this year."