House Democrats introduce surveillance bill rewrite

House Majority Leader Steny Hoyer (D-Md.) unveiled Tuesday a long-awaited bill that would tighten oversight on foreign-intelligence surveillance, undoing several contested provisions in an interim measure that Congress passed shortly before the August recess.

{mosads}The House intelligence and judiciary panels will mark up the legislation Wednesday, and Hoyer said a floor vote is expected next week. But the legislation could draw resistance from liberal Democrats citing civil liberties concerns, while Republicans are expected to balk if the final legislation does not include a retroactive immunity provision for the telecommunications companies that participated in the Bush administration’s secret Terrorist Surveillance Program (TSP) without a court order.

Under the August interim bill, known as the Protect America Act (PAA), Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) to grant new sweeping powers to the attorney general and the director of national intelligence (DNI). The bill allowed them to conduct warrantless surveillance for any foreign policy objectives and intercept communications involving Americans, as long as it concerned a target “reasonably believed” to be abroad.

The bill largely sidelined the role of the Foreign Intelligence Surveillance Court, which had traditionally granted warrants for all foreign-intelligence surveillance within the U.S.

Bt contrast, the new House Democratic bill would strengthen the court’s role and mandate quarterly audits of the program by the Department of Justice’s inspector general.

The court would not require warrants for foreign-to-foreign communications, including those that happen to go through U.S. switches, but it would require one for domestic-to-domestic communications, or in cases when the target was in the U.S.

In cases of foreign-to-domestic communications, the court would issue a “basket warrant” that would apply to a designated group — say, a list of al Qaeda suspects calling the U.S. — for up to a year. The attorney general and DNI could then authorize wiretapping on those foreign targets without individual probable-cause warrants, provided that the court would review the targeting procedures and make sure that non-suspect Americans were expunged from the surveillance. They would also have to certify that the targets were not Americans or U.S. entities, and that the goal is foreign-intelligence collection.

The new bill would also explicitly prohibit warrantless physical searches inside the U.S. and restrict the scope of the program to a narrower range of threats, such as terrorism and sabotage. It would expire on Dec. 31, 2009, so that Congress has time to review the new procedures.

On the issue of retroactive immunity for telecoms, Hoyer did not rule such a move out and said it remains a “on the table.” But he said House Democrats would not support any such immunity measure as long as the administration continues to withhold key materials on the TSP, including legal opinions on the program. “We have insufficient information to proceed rationally,” he said.

Democrats have asked for those documents for over a year, without success.