Thursday, July 10, 2008

US Senate Approves Bill to Broaden Wiretap Powers of the State

July 10, 2008

Senate Approves Bill to Broaden Wiretap Powers

New York Times

WASHINGTON — The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.

The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program he approved after the Sept. 11 attacks.

The vote came two and a half years after public disclosure of the wiretapping program set off a fierce national debate over the balance between protecting the country from another terrorist strike and ensuring civil liberties. The final outcome in Congress, which opponents of the surveillance measure had conceded for weeks, seemed almost anticlimactic in contrast.

Mr. Bush, appearing in the Rose Garden just after his return from Japan, called the vote “long overdue.” He promised to sign the measure into law quickly, saying it was critical to national security and showed that “even in an election year, we can come together and get important pieces of legislation passed.”

Even as his political stature has waned, Mr. Bush has managed to maintain his dominance on national security issues in a Democratic-led Congress. He has beat back efforts to cut troops and financing in Iraq, and he has won important victories on issues like interrogation tactics and military tribunals in the fight against terrorism.

Debate over the surveillance law was the one area where Democrats had held firm in opposition. House Democrats went so far as to allow a temporary surveillance measure to expire in February, leading to a five-month impasse and prompting accusations from Mr. Bush that the nation’s defenses against another strike by Al Qaeda had been weakened.

But in the end Mr. Bush won out, as administration officials helped forge a deal between Republican and Democratic leaders that included almost all the major elements the White House wanted. The measure gives the executive branch broader latitude in eavesdropping on people abroad and at home who it believes are tied to terrorism, and it reduces the role of a secret intelligence court in overseeing some operations.

Supporters maintained that the plan includes enough safeguards to protect Americans’ civil liberties, including reviews by several inspectors general. There is nothing to fear in the bill, said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, “unless you have Al Qaeda on your speed dial.”

But some Democratic opponents saw the deal as “capitulation” to White House pressure by fellow Democrats.

“I urge my colleagues to stand up for the rule of law and defeat this bill,” Senator Russ Feingold, Democrat of Wisconsin, said Wednesday as the outcome was all but assured.

The final plan, which overhauls the Foreign Intelligence Surveillance Act passed by Congress in 1978 in the wake of Watergate, reflected both political reality and legal practicality, supporters said.

Wiretapping orders approved by secret orders under the previous version of the surveillance law were set to begin expiring in August unless Congress acted. Heading into their political convention in Denver next month and on to the November Congressional elections, many Democrats were wary of handing the Republicans a potent political weapon.

The issue put Senator Barack Obama, the presumptive Democratic presidential nominee, in a particularly precarious spot. He had long opposed giving legal immunity to the phone companies that took part in the N.S.A.’s wiretapping program, even threatening a filibuster during his run for the nomination. But on Wednesday, he ended up voting for what he called “an improved but imperfect bill” after backing a failed attempt earlier in the day to strip the immunity provision from the bill through an amendment.

Mr. Obama’s decision last month to reverse course angered some ardent supporters, who organized an Internet drive to influence his vote. And his position came to symbolize the continuing difficulties that Democrats have faced in striking a position on national security issues even against a weakened president. Senator Hillary Rodham Clinton, Democrat of New York, who had battled Mr. Obama for the nomination, voted against the bill.

Senator John McCain, the likely Republican presidential nominee, was campaigning in Ohio and did not vote, though he has consistently supported the immunity plan.

Support from key Democrats ensured passage of the measure.

Senator John D. Rockefeller IV, the West Virginia Democrat who leads the intelligence committee and helped broker the deal, said modernizing the Foreign Intelligence Surveillance Act was essential to give intelligence officials the technology tools they need to deter another attack. But he said the plan “was made even more complicated by the president’s decision, in the aftermath of Sept. 11, 2001, to go outside of FISA rather than work with Congress to fix it.”

He was referring to the secret program approved by Mr. Bush weeks after the Sept. 11 attacks that allowed the N.S.A, in a sharp legal and operational shift, to wiretap the international communications of Americans suspected of links to Al Qaeda without first getting court orders. The program was disclosed in December 2005 by The New York Times.

As Congress repeatedly tried to find a legislative solution, the main stumbling block was Mr. Bush’s insistence on legal immunity for the phone companies. The program itself ended in January 2007, when the White House agreed to bring it under the auspices of the FISA court, but more than 40 lawsuits continued churning through federal courts, charging AT&T, Verizon and other major carriers with violating customers’ privacy by conducting wiretaps at the White House’s direction without court orders.

The final deal, which passed the House on June 20, effectively ends those lawsuits. It includes a narrow review by a district court to determine whether the companies being sued received formal requests or directives from the administration to take part in the program. The administration has already acknowledged those directives exist. Once such a finding is made, the lawsuits “shall be promptly dismissed,” the bill says. Republican leaders say they regard the process as a mere formality to protect the phone carriers from liability.

Lawyers involved in the suits against the phone companies promised to challenge the immunity provision in federal court.

“The law itself is a massive intrusion into the due process rights of all of the phone subscribers who would be a part of the suit,” said Bruce Afran, a New Jersey lawyer representing several hundred plaintiffs suing Verizon and other companies. “It is a violation of the separation of powers. It’s presidential election-year cowardice. The Democrats are afraid of looking weak on national security.”

The legislation also expands the government’s power to invoke emergency wiretapping procedures. While the N.S.A. would be allowed to seek court orders for broad groups of foreign targets, the law creates a new seven-day period for directing wiretaps at foreigners without a court order in “exigent” circumstances if government officials assert that important national security information would be lost. The law also expands to seven days, from three, the period for emergency wiretaps on Americans without a court order if the attorney general certifies there is probable cause to believe the target is linked to terrorism.

Democrats pointed to some concessions they had won. The final bill includes a reaffirmation that the FISA law is the “exclusive” means of conducting intelligence wiretaps — a provision that Representative Nancy Pelosi of California, the House speaker, and other Democrats insisted would prevent Mr. Bush or any future president from evading court scrutiny in the way they say that the N.S.A. program did.

David Stout contributed reporting.

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