As the clock runs down on a controversial domestic-spying program, a tangled legal and political battle mounts. President Bush warned Congress during his final State of the Union speech January 28 of dire consequences should the government’s wiretapping of overseas terror suspects be forced into temporary retirement on February 1. “If you don’t act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger,” he said. Lawmakers on January 30 answered the call (WashPost) and approved a fifteen-day extension to amendments of the Foreign Intelligence Surveillance Act (FISA). But the controversy is unlikely to subside: critics accuse the Bush administration of fearmongering (Salon) to further its spying agenda, and say even if FISA reforms expired without action the president would still be able to conduct surveillance, albeit with court approval.
Among the thorniest unresolved issues is a call to extend retroactive immunity to U.S. companies assisting in electronic monitoring of U.S. citizens. AT&T, Verizon, and other telecom giants each face multibillion dollar lawsuits for their roles in the National Security Agency’s intelligence collection efforts. Vice President Dick Cheney said in a January 2008 address to the Heritage Foundation that amnesty is needed to keep communication companies cooperating with spy agencies. “Without liability protection for past activities to aid the government, the private sector might be extremely reluctant to comply with future requests from the government,” he said. The Democratic-majority House disagrees—they passed an updated FISA bill in November minus the immunity provision—but squabbling continues in the Senate, where lawmakers cannot reach consensus on the amnesty provision.
Temporary changes to FISA adopted in August 2007—as set down in the Protect America Act (PAA)—expand the government’s power to approve international surveillance without court approval, and make warrants unnecessary for monitoring communications of persons “reasonably believed” to be located overseas. Changes in technology mean some foreign-to-foreign communications pass through “switches” on U.S. soil, thus requiring warrants to monitor them; the PAA relaxes that requirement.
Now critics of the legislation are looking for a return to more oversight. A New York Times editorial sees the Bush administration’s efforts to win amnesty for telecoms as a sinister plot of concealment. “The real aim is to make sure the full story of the illegal wiretapping never comes out in court.” The American Civil Liberties Union, in a January 22 letter to Senate Majority Leader Harry Reid (D-NV), agrees. “Killing all the pending cases will have two effects,” the group argues: depriving consumers’ privacy rights and burying “government misconduct” (PDF). Yet supporters of the administration’s drive for amnesty say the telecom industry worked with the government in good faith and should be protected. Sen. Kit Bond (R-MO), vice chairman of the Senate Intelligence Committee, has dubbed legal challenges “frivolous.” Sen. Kay Bailey Hutchison (R-TX), says telecoms are being targeted for being patriotic (CBS/AP).
Immunity is not the only sticking point holding up FISA reforms. Some critics and supporters alike agree FISA needs a second look. Sen. Russ Feingold (D-WI), an opponent of the telecom amnesty provision, argues whatever replaces the temporary changes needs to include greater judicial involvement (DailyKos.com) to protect the privacy of innocent Americans. Legal experts at the Heritage Foundation, meanwhile, say a permanent mandate from Congress (PDF) is needed to restore the commander in chief’s “constitutional authority” to gather foreign intelligence without judicial approval. Others favor taking no action. Rep. Rush Holt (D-NJ), a member of the House Intelligence Committee, says the Protect America Act was a bad bill and there’s no reason to extend it now (TPM).