Senate passes surveillance reform, re-inserts telco immunity

In his State of the Union address last month, President Bush said he would sign no extension to existing surveillance laws that did not grant telcos immunity for having cooperated in the past. Today, the President got his wish.

In a move almost certain to set up a showdown between US House and Senate lawmakers in conference committee, by a vote of 68 - 29, the Senate yesterday afternoon passed the House's version of a bill granting limited warrantless surveillance powers to US intelligence and justice officials, but only after re-inserting a clause whose deletion was critical to its passage in the House: The clause grants immunity to telecommunications companies who cooperated with the government in the past in foreign intelligence operations.

"Notwithstanding any other law, no cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1)," the re-inserted clause reads. Paragraph (1) in that clause refers to the ability granted the Attorney General and the Director of National Intelligence to direct telcos to make available "all information, facilities, or assistance necessary" to acquire intelligence data on persons believed to be "non-United States persons."

The phraseology of that last term, and the fact that it remains in the Senate language, is important because it increases the boundaries of legal protection beyond the more confining definition of "United States citizen," to include residents here, people with jobs here, and those seeking citizenship.

Provisions of existing US law granting the Justice Dept. and Intelligence services the right to target non-US persons, had been extended once to allow lawmakers more time for debate, but were still set to expire this Saturday. That might have resulted in the suspension of US anti-terrorism operations. Now, while most of the remaining language should be amenable to both bodies of Congress, they only have until the end of this week to reconcile in committee whether the re-inserted immunity clause stays or goes.

This morning, the President issued a statement from the Oval Office commending the Senate's action. "The Senate has used this time wisely," Mr. Bush stated. "I am pleased that last night, Senators approved new legislation that will ensure our intelligence professionals have the tools they need to make us safer -- and they did so by a wide, bipartisan majority. The Senate bill also provides fair and just liability protections for companies that did the right thing and assisted in defending America after the attacks of September the 11th."

But the President went on to draw black-and-white distinctions between the House and Senate versions of the bill, calling the Senate version "a good bill" and the House version "not...a good bill." The major distinction between good and not is the presence and absence, respectively, of the immunity clause.

There were two Senate versions of the FISA Amendments bill, one with language drafted by the Senate Intelligence Committee and sponsored by Chairman Jay Rockefeller (D - WV) and Vice Chairman Kit Bond (R - Mo.). That version included the telco immunity clause. The second version, drafted by the Senate Judiciary Committee and sponsored by Chairman Patrick Leahy (D - Vt.), omitted the clause.

Last December, Senate Majority Leader Harry Reid (D - Nev.) tried to dispense with the matter by quietly inserting the Rockefeller-Bond version onto the floor schedule just before Christmas in a move to expedite passage. But supporters of the Leahy bill protested, including Sen. Chris Dodd (D - Ct.) who threatened to lead a filibuster against his own party.

Sen. Reid postponed debate to stall Sen. Dodd's filibuster, but that move gave time for the House to pass language that was compatible with Rockefeller-Bond. Still, the House didn't exactly act as planned, stripping the telco immunity clause from its language. With the expiration deadline looming, and with the President's veto pen being warmed up, senators may have felt compelled once again to pass Rockefeller-Bond, some in hopes that the conference committee may yet resolve the matter.

As the renamed FISA Amendments Act of 2008 now reads, Justice and Intelligence will have the authority to target persons reasonably suspected of being outside the US, who are not themselves US persons. They can do so for operations lasting up to one year without seeking a warrant from a surveillance court.

But they must still be accountable to the court, by providing written certifications to the court under oath within a five-day period. This gives Intelligence the authority to start targeting non-US persons if they must, but it does not authorize them to keep their operations secret from the surveillance court.

As the Senate's revised language now reads, agencies may have the authority to issue a directive to compel telcos for the information and resources they need. A telco that disputes the directive may then file a challenge petition with a FISA court -- which, if it's done timely enough, may be the court's first indication that such an operation is taking place. The court then has five days to review the evidence and either grant the telco's petition or enforce the agency's directive.

Late yesterday on the Senate floor, Minority Leader Mitch McConnell (R - Ky.) -- who was a co-sponsor of last August's extension of the original RESTORE Act's provisions -- hailed the Senate's passage, but then took a shot across the bow toward the House.

"Twenty-one House Democrats have written Speaker Pelosi saying they 'fully support' the Rockefeller-Bond bill if it is not changed substantially -- and it was not," Sen. McConnell stated, "and they urge her to 'quickly consider' this bill in order 'to get a bill signed into law before the Protect America Act expires in February."'