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House Dems Release Draft of 'Compromise' Surveillance Bill
from the just-say-no-to-telecom-immunity dept
Democrats in the House of Representatives have finally released a preliminary draft of compromise legislation to amend the Foreign Intelligence Surveillance Act. For civil libertarians who had resigned themselves to one more capitulation to White House demands, the bill will come as a relief: There is not a lot of compromise in this "compromise bill." Unsurprisingly, that means that administration officials, and the House Republican leadership, regard the bill as unacceptable.
On the hot-button question of retroactive immunity for telecoms alleged to have participated in warrantless National Security Agency wiretaps, the draft bill would shunt suits against the companies to a federal court empowered to hear classified evidence. This may come as welcome news to the telecoms, which had complained that the exculpatory evidence they need to defend themselves consists largely of state secrets. It will probably be less appealing to the Bush administration, which has resisted outside scrutiny of the surveillance activities authorized by the president after 9/11. For similar reasons, the White House is likely to oppose a provision in the draft bill creating a bipartisan commission, endowed with subpoena powers, to investigate government wiretaps from 2001–2007.
The bill's approach to executive branch wiretaps is in many respects similar to that of the RESTORE Act passed by the House last year, as a side-by-side comparison chart makes clear. The administration is thrown a few bones: Unlike the RESTORE Act, this legislation covers surveillance serving any foreign intelligence purpose, rather than only those related to terrorism or national security. It also expands, from 72 hours to one week, the time allowed for "emergency" wiretaps implemented in advance of court authorization. But on the whole, it embeds significantly more stringent civil liberties safeguards than the White House–approved legislation passed by the Senate. Instead of changing the definition legal of "foreign intelligence" -- an important term appearing in a variety of complex statutes -- the bill carves out a special exemption, allowing intelligence agencies to acquire communications between specific overseas targets and person in the United States. The bill also requires the development of guidelines to prevent "reverse targeting" of Americans, to ensure that lenient FISA procedures cannot be used to circumvent the more stringent requirements that apply to ordinary criminal investigations. The FISA court must approve surveillance procedures in advance, and both the procedures and agencies' compliance with "minimization" guidelines designed to limit the unnecessary retention of Americans' communications are subject to review by the court and a independent Inspector General. It also incorporate's the Senate bill's "Wyden Amendment," providing protection for Americans abroad. Finally, the law is scheduled to sunset in two years, rather than the Senate bill's six.
Whether House Democrats will be able to succeed in pushing this legislation through is unclear. Senate Intelligence Committee Chair Jay Rockefeller (D-WV), whose support will be critical in getting any law passed, has said that "considerable work remains" before he will be prepared to support proposed reforms. Despite its similarity to the stalled RESTORE Act, though, House leaders may have pulled off a bit of clever political jujitsu by offering new legislation. Republicans had fought hard to frame the debate as a question of inaction, on the one hand, or passage of the Senate bill, on the other. The burden, Democrats presumably hope, will now shift to Republicans to explain why they cannot countenance the passage of "vital" legislation with a few extra safeguards and checks.
Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.
