House Dems propose fix on wiretaps

A new proposal to rewrite rules for eavesdropping on suspected terrorists could lead to another showdown with the White House, but congressional Democrats first must settle differences among themselves.

{mosads}House Democrats 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.

For now, it appears that the various factions within the House Democratic Caucus have accepted the legislative proposal.

Rep. Jerrold Nadler (D-N.Y.), chairman of the Judiciary Constitution subcommittee and a close ally of civil liberties groups, called it “a careful balance between security and freedom.”

House Democrats were scheduled to caucus on Tuesday evening to discuss the FISA legislation, and Conyers and liberal Democrats planned to meet as well. Along with mapping out a strategy to pass the bill on the House floor next week, House Democrats will consider how to negotiate with their Senate counterparts, who will likely grapple with the threat of a GOP filibuster.

House Democrats are worried that the Senate will sell them short by bowing to President Bush’s demands.

A House Democratic lawmaker said, “What we don’t want to see is the Senate weak-kneeing out of this thing … We just want to make sure the Senate does not throw their hands up and go home.”

A Senate Democratic aide, however, suggested that there has been little discussion to date between Democrats in both chambers. “We have not really tried to coordinate our approaches on this,” he said.

The Senate Intelligence Committee is marking up its bill next week, after which it will be referred to Judiciary.

The measure drew sharp criticism from some key House Republicans as well as a mixed reaction from the left, which voiced concerns over civil liberties.

The bill, written by Judiciary Chairman John Conyers Jr. (D-Mich.) and Intelligence Chairman Silvestre Reyes (D-Texas), was introduced Tuesday by Majority Leader Steny Hoyer (D-Md.) The House intelligence and judiciary panels will mark up the legislation Wednesday, and Hoyer said a floor vote is expected next week.

“Not only is this bill better than the bill passed in August, it’s better than the original FISA bill in protecting our civil liberties,” House Speaker Nancy Pelosi (D-Calif.) told reporters on Tuesday at a lunch hosted by the Christian Science Monitor.

The bill does not provide retroactive immunity for the telecommunications companies that participated in the Bush administration’s warrantless Terrorist Surveillance Program (TSP)  – a key demand by the White House and many Republicans. But Hoyer did not rule out a compromise on the issue, noting that it remains “on the table.”

“My speculation is that immunity has to be addressed one way or the other, but no determination has been made,” said Hoyer.

Hoyer added that 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. Many key Senate Democrats have taken a similar line.

Democrats have asked for those documents for over a year, without success. But the White House told congressional leaders last Friday that it would try to deliver those materials by Oct. 22.

Under the August interim law, known as the Protect America Act (PAA), Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) to grant new powers to the attorney general and the director of national intelligence (DNI).

The August law largely sidelined the role of the Foreign Intelligence Surveillance Court, which had traditionally granted warrants for all foreign-intelligence surveillance within the U.S.
By contrast, the new House Democratic bill — termed the RESTORE Act (Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007) — 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 foreign group — such as 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 targets without individual warrants, provided that the court would review the targeting procedures and make sure that non-suspect Americans were expunged from the surveillance.

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. To accommodate House liberals, Reyes added a provision that would sunset the law on Dec. 31, 2009, so that Congress has time to review the new procedures.

The American Civil Liberties Union commended the bill as an improvement over the PAA, but condemned its provision allowing basket warrants for foreign-domestic calls. The group has called for individual probable-cause warrants for any communications involving an American.

Both bills “allow the government to issue these broad program warrants that state neither the targets of the search, nor the facilities that will be accessed,” said Caroline Frederickson, director of the ACLU’s Washington legislative office, in a statement. “They are virtually a blank check that only requires the surveillance be directed at people abroad, which may very well be unconstitutional.”

Sen. Russ Feingold (D-Wis.), who sits on both the Intelligence and Judiciary panels, issued a statement praising the House Democrats’ decision to exclude a retroactive immunity clause. But he suggested that he would press for stronger protections for Americans communicating with people overseas.

Meanwhile, key House Republicans blasted the Democratic measure — an indication that it may pass the chamber only with a narrow Democratic majority. Intelligence Committee ranking member Peter Hoekstra (R-Mich.) said in a statement that the bill “prevents the U.S. intelligence community from focusing on its core mission of conducting surveillance on radical jihadists and other foreign threats to prevent the next attack.”

The bill also drew a strong warning from Senate Intelligence Committee Vice Chairman Kit Bond (R-Mo.), who said in a statement the bill would overburden the FISA court.

But the statement also indicated that the Senate intelligence panel may produce a more bipartisan product. Bond “praised his colleagues” on the panel for “making progress on a comprehensive and bipartisan bill that, unlike the flawed House Democratic proposal, will continue to close critical intelligence gaps while protecting civil liberties of ordinary Americans.” 

House Democratic leaders wrote the legislation to try to find the right balance so as not to alienate liberal Democrats, who oppose  giving any retroactive immunity to telecommunications firms, and centrist  Democrats.

“We don’t think we’re rolling over at all,” Hoyer told reporters. “I believe we reached a real compromise.”

Still, Hoyer’s view did not find credence with some in the liberal blogosphere.

“There is no reason to let this go through.  We have all the leverage in the expiration of the FISA temporary fix,” Matt Stoller, a liberal blogger at OpenLeft.org, wrote on Tuesday. “Bush is horribly unpopular and civil liberties are a core value.  And Democrats don’t have to pass anything. If this goes through, it’s an outrage.”