The renewed Congressional debate over changes to the rules that govern the government’s ability to wiretap and spy has set up a major confrontation between the White House and Congress and an internal battle between Democrats in the Senate.
In August, Congress rushed through a temporary expansion of spying powers before they left for summer recess. The so-called “Protect America Act” (PAA), legislation written largely by White House officials, passed despite a majority of Democrats in both the Senate and House voting against it. The PAA removed many of the oversight provisions established in the original Foreign Intelligence Surveillance Act (FISA) and gave intelligence agents more time to spy on Americans before obtaining a warrant. Now, with the PAA set to expire in February, Democrats in Congress are anxious to pass a bill that would roll back some of the spying authority given to the executive branch by the PAA and restore Judicial and Congressional oversight of domestic surveillance. Yet, no clear resolution has emerged on the legislation’s two key points of controversy: immunity for telecommunication carriers and the scope of the government’s authority to spy on Americans.
Since the PAA’s passage, Bush administration officials have been pushing Congress to make it permanent and to protect telecommunication companies from being sued for their cooperation in domestic spying. Lawsuits against the telecoms have been an effective avenue for revealing information about the surveillance activities of the Bush administration. The administration claims retroactive immunity for the telecoms is necessary to ensure their cooperation in future surveillance activities. But critics argue the Bush administration is pushing for the immunity provision because it would prevent information about illegal government spying from becoming public. With the support of Attorney General Michael Mukasey, Bush has promised to veto any FISA bill that does not include retroactive immunity for telecoms that gave the government access to their networks and records. The House recently passed a FISA bill that intentionally did not include retroactive immunity. A split among Democrats in the Senate over the immunity issue will be resolved on the Senate floor in early December, according to Majority Leader Harry Reid’s spokesperson Jim Manley. The Senate Intelligence Committee, chaired by Sen. Jay Rockefeller (D-W. Virginia), drafted a FISA bill that included retroactive immunity. The bill had bipartisan support, with Senators Dianne Feinstein (D-California) and Sheldon Whitehouse (D-Rhode Island) supporting the immunity provision. The bill was then referred to the Senate Judiciary Committee, where portions of it were amended last week. The Judiciary Committee did not pass language addressing the retroactive immunity provision. Sen. Patrick Leahy (D-Vermont), chairman of the Judiciary Committee, stands opposed to letting the telecoms off the hook. Erica Chabot, spokesperson for Leahy, said it is a “top priority” for Leahy that there be “some kind of accountability for the people who had their privacy violated.” Leahy has been joined by Sen. Chris Dodd (D-Connecticut), who has promised to filibuster any legislation that includes retroactive immunity for telecoms. According to his spokesperson, Reid will bring the Intelligence Committee bill to the full Senate with the Judiciary Committee version as the first amendment. Because the Judiciary version does not address telecom immunity, the issue will be resolved by individual amendments.
Fourth Amendment Rights
The Judiciary Committee bill diverges substantially from both the Intelligence Committee and House versions regarding the scope of surveillance targets. The House and Intelligence Committee bills permit the court to grant “basket warrants,” which authorize the government to target whole organizations or groups of people, as long as it can prove one party being tapped is outside of the United States. The warrant would not have to specify the individual people being targeted, an exemption that would violate the Fourth Amendment’s “particularity” requirement, according to Washington, DC, American Civil Liberties Union spokeswoman Michelle Richardson. Moreover, neither the Intelligence Committee bill nor the House bill requires the government to specify the facilities, emails or phone numbers to be searched. Under the Fourth Amendment, a description of the target location is mandatory to receive a warrant for search or surveillance. “The requirements [of the bill] are so low, it would basically be a blank check – a massive, untargeted collection without any individualized review,” Richardson said. Under the House and Senate Intelligence Committee bills, basket warrants would be reviewed periodically by the court, though no records would be kept of the individual people and places targeted, nor of the purposes for which the information was used. The Judiciary Committee’s version of the bill, however, addresses the particularity problem via an amendment mandating “at least one party [be] a specific individual target who is reasonably believed to be located outside of the United States.”
This amendment, offered by Sen. Russ Feingold, sets up the Judiciary bill in sharp contrast to the other two proposals, with a focus on strategically limiting the government’s powers of surveillance, according to Richardson. “It’s a huge step in the right direction, and prevents the government from just scooping up all international communications and data-mining them or otherwise using them in the future,” Richardson said.
No matter what form the final Senate bill takes, it will contend with a House bill that could provide multiple opportunities for warrantless spying on people inside the United States. During the process of foreign-to-foreign surveillance (which is permitted without a warrant in all the bills), communications between Americans will inevitably be picked up inadvertently. The House bill allows such material to be retained for seven days without a court order. This “inadvertent interception” clause could be used to defend the warrantless tapping of communications involving Americans, on the pretense that such investigations were meant to target foreigners, according to Richardson. For all three bills, the “foreign-to-foreign” distinction is blurry, since Internet communications are often routed outside the United States, even if both parties are in the United States. This could expose Internet users in the United States to surveillance. “It is common for those who want to give the government new powers to argue that we just have to bring FISA up to date with new technology,” Feingold said during the Judiciary Committee mark up of the bill. “But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens.”
The Judiciary Committee bill does not specifically address inadvertent data collection. Additionally, under the House and Senate Intelligence bills, undocumented immigrants would not be granted protection from warrantless surveillance. The Judiciary Committee bill makes no reference to undocumented persons. Although the Judiciary Committee’s version may face a beating on the Senate floor, Richardson is hopeful. She notes the Judiciary version doesn’t make sweeping changes to FISA laws; it just aims to rein in some of the PAA’s broad expansions of power. “I think the amendment actually starts to scale back the bill to the authority the administration originally requested: easier wiretapping of bad guys overseas,” Richardson said. “[The administration] should have no problem accepting this amendment if they are consistent and intellectually honest.”
Matt Renner is an assistant editor and Washington reporter for Truthout. Maya Schenwar is a reporter for Truthout.