A measure to extend amendments to the Foreign Intelligence Surveillance Act for three weeks failed to pass in the U.S. House of Representatives on Wednesday. The failure is a setback for Democrats who had been hoping for the extra time to hammer out a solution to a politically explosive issue: that is, whether and how to extend retroactive immunity to the telecom companies that cooperated with the federal government’s program of eavesdropping without warrants.
How this will play out remains to be seen, but pressure is mounting on politicians who want more time to investigate how the government intends to use the information it gathers. The current Protect America Act, which amends the underlying FISA rules to give the executive branch expanded surveillance powers, expires on Friday.
Earlier this week, the U.S. Senate approved legislation renewing the stopgap FISA provisions established in the PAA. The bill broadens the rights of the executive branch to spy on U.S. residents without judicial oversight; it also gives the controversial retroactive immunity to telecom providers.
Since the so-called warrantless wiretap program was uncovered by the media and made public a few years ago, some 40 lawsuits have been filed against AT&T and other major providers that allowed the government to listen in on their customers’ phone conversations without obtaining a warrant.
President Bush has been an active supporter of this protection; Democrats and a few Republicans have resisted it, arguing that more information about the surveillance program is needed.
The path from a bill passed in one chamber of Congress to becoming a permanent law is not a straightforward one. The House could pass a bill without the immunity provision, which would surely be vetoed by the president. Or, it could pass a veto-proof bill — but in that case, the areas of conflict between the Senate and House versions would still have to be hammered out in conference committee.
End of the Suits
Should the current language of the telecom immunity clause survive to become law, it could effectively end the pending litigation against these companies.
“It is very disappointing that the Senate passed this bill,” said Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, which is a party in the suits. “We will have to see what happens in the House.”
However, it is not necessarily a given that the plaintiffs would have no recourse against the telecoms, Opsahl told the E-Commerce Times. Conceivably, the law could be challenged in court.
“Once we see what the final bill is, we will make the appropriate decision of whether and how to challenge it,” he said.
As presented by the administration, the case for the bill’s passage is that broad surveillance powers are necessary to identify and prevent terrorist attacks. The government already has such power to spy on people outside U.S. borders. Within the country, though, it is hamstrung by the need to get court approval for wiretaps in a timely manner.
The immunity is necessary, the administration argues, to secure the telecoms’ participation in the program.
However, the new law may erode more protections against government intrusion than most people realize, opponents warn.
“It totally eviscerates our fundamental process of having a judge provide oversight and serve as a watchdog against abuse,” Peter Vogel, an attorney with Gardere Wynne Sewell, told the E-Commerce Times. “Part of responsibility of the judiciary is to serve as a check against legislative and executive branches. What the executive branch wants here is to circumvent the judiciary’s participation.”
If the bill were to become law, warrantless wiretapping could be successfully challenged in court, Vogel said, adding that the immunity exemption to telecoms also might be overturned. “Basically, what these companies did is hand over records without a court authority, just on the government’s request.”
Who’s a Terrorist?
The Senate bill does not clearly define a “terrorist” who would thus be subject to the warrantless wiretap program. “Could I be considered a ‘terrorist’ because I answered these questions and spoke out against a program the executive branch favors?” Vogel asked rhetorically. He pointed to government investigations of civil rights activists in the ’60s — most notably Martin Luther King, Jr. — as examples of questionable executive branch decision-making on who deserves investigation.
Vogel also took issue with the safeguards the bill put in place, noting that the Secret Intelligence Court’s review of processes that might violate rights would take place after the fact.