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    Senate Votes for Expansion of Spy Powers
    By Eric Lichtblau
    The New York Times

    Wednesday 13 February 2008

    Washington - After more than a year of wrangling, the Senate handed the White House a major victory on Tuesday by voting to broaden the government's spy powers and to give legal protection to phone companies that cooperated in President Bush's program of eavesdropping without warrants.

    One by one, the Senate rejected amendments that would have imposed greater civil liberties checks on the government's surveillance powers. Finally, the Senate voted 68 to 29 to approve legislation that the White House had been pushing for months. Mr. Bush hailed the vote and urged the House to move quickly in following the Senate's lead.

    The outcome in the Senate amounted, in effect, to a broader proxy vote in support of Mr. Bush's wiretapping program. The wide-ranging debate before the final vote presaged discussion that will play out this year in the presidential and Congressional elections on other issues testing the president's wartime authority, including secret detentions, torture and Iraq war financing.

    Republicans hailed the reworking of the surveillance law as essential to protecting national security, but some Democrats and many liberal advocacy groups saw the outcome as another example of the Democrats' fears of being branded weak on terrorism.

    "Some people around here get cold feet when threatened by the administration," said Senator Patrick J. Leahy, the Vermont Democrat who leads the Judiciary Committee and who had unsuccessfully pushed a much more restrictive set of surveillance measures.

    Among the presidential contenders, Senator John McCain, Republican of Arizona, voted in favor of the final measure, while the two Democrats, Senator Barack Obama of Illinois and Senator Hillary Rodham Clinton of New York, did not vote. Mr. Obama did oppose immunity on a key earlier motion to end debate. Mrs. Clinton, campaigning in Texas, issued a statement saying she would have voted to oppose the final measure.

    The measure extends, for at least six years, many of the broad new surveillance powers that Congress hastily approved last August just before its summer recess. Intelligence officials said court rulings had left dangerous gaps in their ability to intercept terrorist communications.

    The bill, which had the strong backing of the White House, allows the government to eavesdrop on large bundles of foreign-based communications on its own authority so long as Americans are not the targets. A secret intelligence court, which traditionally has issued individual warrants before wiretapping began, would review the procedures set up by the executive branch only after the fact to determine whether there were abuses involving Americans.

    "This is a dramatic restructuring" of surveillance law, said Michael Sussmann, a former Justice Department intelligence lawyer who represents several telecommunication companies. "And the thing that's so dramatic about this is that you've removed the court review. There may be some checks after the fact, but the administration is picking the targets."

    The Senate plan also adds one provision considered critical by the White House: shielding phone companies from any legal liability for their roles in the eavesdropping program approved by Mr. Bush after the Sept. 11 attacks. The program allowed the National Security Agency to eavesdrop without warrants on the international communications of Americans suspected of having ties to Al Qaeda.

    AT&T and other major phone companies are facing some 40 lawsuits from customers who claim their actions were illegal. The Bush administration maintains that if the suits are allowed to continue in court, they could bankrupt the companies and discourage them from cooperating in future intelligence operations.

    The House approved a surveillance bill in November that intentionally left out immunity for the phone companies, and leaders from the two chambers will now have to find a way to work out significant differences between their two bills.

    Democratic opponents, led by Senators Russ Feingold of Wisconsin and Christopher J. Dodd of Connecticut, argued that the plan effectively rewarded phone companies by providing them with legal insulation for actions that violated longstanding law and their own privacy obligations to their customers. But immunity supporters said the phone carriers acted out of patriotism after the Sept. 11 attacks in complying with what they believed in good faith was a legally binding order from the president.

    "This, I believe, is the right way to go for the security of the nation," said Senator John D. Rockefeller, the West Virginia Democrat who leads the intelligence committee. His support for the plan, after intense negotiations with the White House and his Republican colleagues, was considered critical to its passage but drew criticism from civil liberties groups because of $42,000 in contributions that Mr. Rockefeller received last year from AT&T and Verizon executives.

    Senator Olympia J. Snowe, a Maine Republican on the intelligence panel, said the bill struck the right balance between protecting the rights of Americans and protecting the country "from terrorism and other foreign threats."

    Democratic opponents, who six months ago vowed to undo the results of the August surveillance vote, said they were deeply disappointed by the defection of 19 Democrats who backed the bill.

    Mr. Dodd, who spoke on the floor for more than 20 hours in recent weeks in an effort to stall the bill, said future generations would view the vote as a test of whether the country heeds "the rule of law or the rule of men."

    But with Democrats splintered, Mr. Dodd acknowledged that the national security argument had won the day. "Unfortunately, those who are advocating this notion that you have to give up liberties to be more secure are apparently prevailing," he said. "They're convincing people that we're at risk either politically, or at risk as a nation."

    There was a measure of frustration in the voice of Harry Reid, the Senate majority leader, as he told reporters during a break in the daylong debate, "Holding all the Democrats together on this, we've learned a long time ago, is not something that's doable."

    Senate Republicans predict that they will be able to persuade the House to include immunity in the final bill, especially now that the White House has agreed to give House lawmakers access to internal documents on the wiretapping program. But House Democrats vowed Tuesday to continue opposing immunity.

    Congress faces a Saturday deadline for extending the current law, but Democrats want to extend the deadline for two weeks to allow more time for talks. The White House has said it opposes a further extension.

    Meanwhile, Senate Democrats hope to put some pressure on Republicans on Wednesday over another security-related issue by bringing up an intelligence measure that would apply Army field manual prohibitions against torture to civilian agencies like the Central Intelligence Agency.

    Republicans plan to try to eliminate that provision, a vote that Democrats say will force Republicans to declare whether they condone torture. Democrats also say it could show the gap between Mr. McCain, who has opposed torture, and the administration on the issue.

    "We know how we would feel if a member of the armed services captured by the enemy were, for example, waterboarded," Mr. Reid said. "So I think that we're headed in the right direction, and I hope that we'll get Republican support on this."

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    Carl Hulse contributed reporting from Washington.

 

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    FISA Heads for Showdown
    By J. Taylor Rushing
    The Hill

    Tuesday 12 February 2008

    A highly controversial wiretapping bill headed toward a conference showdown late Tuesday after the Senate passed a version giving legal immunity to phone companies that took part in President Bush's terrorist surveillance program.

    With a 68-29 vote that flatly contradicted the House on this key issue, the Senate passed White House-backed legislation updating the 1978 Foreign Intelligence Surveillance Act (FISA). 19 Democrats sided with their GOP colleagues, including Intelligence Committee Chairman Jay Rockefeller (D-W.Va.). The legislation would grant retroactive immunity to carriers that participated in the National Security Agency's (NSA) surveillance program - which bypassed the Foreign Intelligence Surveillance Court - as long as they show they had authorization from the federal government.

    But a difficult conference could stall final passage of the bill, as lawmakers continue to argue over whether to shield the carriers from the 40 or so lawsuits they face relating to the program.

    Differences between the Senate version and the House-passed FISA bill, which does not include the immunity provision, must be resolved by Friday, when a six-month-old interim FISA law expires.

    Under pressure from the White House, Congress passed legislation last August that granted broad powers to the government to conduct warrantless surveillance, including on Americans, as long as the communication concerned a party reasonably believed to be abroad.

    In a sign of the bumpy road ahead, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) wrote the White House Tuesday to reject the administration's claim that the immunity is justified by secret documents it has shared with him and other select members of Congress.

    "There is no basis for the broad telecommunications company amnesty provisions advocated by the administration and contained in the [Senate FISA] bill," Conyers wrote White House Counsel Fred Fielding. "These materials raise more questions than they answer."

    But senators rejected a series of six amendments earlier Tuesday that would have reined in or strengthened oversight of the NSA program. They included amendments that would strip or revise the immunity protections, as well as language that would bolster the role of the FISA court, which has traditionally overseen foreign-intelligence gathering on U.S. soil.

    The sole Democratic victory, adopted by voice vote, was an amendment by Sen. Sheldon Whitehouse (D-R.I.) that would prevent the government from preserving any surveillance it accidentally collects on Americans in the course of targeting someone else.

    Even if House and Senate negotiators can agree, final passage faces other obstacles. Sen. Chris Dodd (D-Conn.) has threatened a filibuster if the final bill provides blanket immunity for the phone companies, while President Bush has threatened to veto any bill that does not.

    Senate Minority Leader Mitch McConnell (R-Ky.) urged a quick conference with the House and said he doubted a conference was even necessary.

    "We're on the verge of a significant, bipartisan accomplishment," he said. "This is a bill that will get a presidential signature."

    Senate Majority Leader Harry Reid (D-Nev.) was among those who voted Tuesday to strip immunity.

    But he said afterwards that the bill has still been "improved" by the Senate and that he preferred to move on to other legislation.

    Presidential hopeful Sen. Hillary Rodham Clinton (D-N.Y.) was not present to vote, but issued a statement condemning the Senate bill. Her rival Barack Obama (D-Ill.) was in the chamber and voted against immunity.

    The FISA rewrite has been a battle between the White House and Congress since last summer. The White House has argued it needs more flexibility to wiretap terrorist targets, while many Democrats charge that the administration has trampled on Americans' privacy rights and tried to force the issue through Congress with little debate.

    With their 51-49 hold on the Senate, Democrats have been unable to hold enough of their members together to stand firm. Rockefeller, for example, took a leading role in crafting the Senate bill that protects the phone companies.

    Tuesday's votes in favor of immunity led some Democrats to insist that the final product negotiated with the House include at least some minimal privacy protections or accountability by the phone companies. Sen. Jim Webb (D-Va.), who voted against striking the immunity language wholesale, said he is drafting a letter to send to Senate negotiators to that effect.

    "There should be some restrictions," he said. "It shouldn't be total."

    The immunity votes also angered the chamber's more liberal members, such as Sen. Russ Feingold (D-Wis.), who had tried repeatedly to strip immunity provisions from the legislation.

    "It's really a sad day when the United States Senate provides immunity beyond the law to these companies," he said. "To give them a free pass after they allegedly did not follow the law is just really a dangerous chapter in the history of our adherence to the rule of law."

    But Republicans said they would hold firm during conference negotiations, sticking with Bush's insistence on immunity as part of the law's reauthorization.

    "Immunity is very, very important, obviously, to get the full capability and cooperation we need," said Sen. Kay Bailey Hutchison (R-Texas). "I have not seen any middle ground that I think would work in practicality."

    Many senators dismissed the idea of another extension for the law to allow more time for House-Senate negotiations. Bush already signed a 15-day extension at the end of January, and vowed he would not sign another.