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Surveillance Bill Meets Resistance in Senate    [

    Judge Rules Against Bush in Spying Lawsuit
    The Associated Press

    Thursday 20 July 2006

Administration argues defending case threatens to reveal state secrets.

    San Francisco - A federal judge Thursday refused to dismiss a lawsuit challenging the Bush administration's domestic spying program, rejecting government claims that allowing the case to go forward could expose state secrets and jeopardize the war on terror.

    U.S. District Judge Vaughn Walker said the warrantless eavesdropping has been so widely reported that there appears to be no danger of spilling secrets.

    Dozens of lawsuits alleging that telecommunications companies and the government are illegally intercepting Americans' communications without warrants have been filed. This is the first time a judge has ruled on the government's claim of a "state secrets privilege."

    "It might appear that none of the subject matter in this litigation could be considered a secret given that the alleged surveillance programs have been so widely reported in the media," Walker said.

    "Dismissing This Case ... Would Sacrifice Liberty"

    Walker also wrote that he did not see how allowing the lawsuit to continue could threaten national security.

    "The compromise between liberty and security remains a difficult one," Walker said. "But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

    And in declining to dismiss AT&T Inc. from the lawsuit, filed by the Electronic Frontier Foundation privacy group, Walker suggested the case had some merit. "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal," he wrote.

    The Justice Department did not immediately return calls seeking comment.

    The lawsuit challenges President Bush's assertion that he can use his wartime powers to eavesdrop on Americans without a warrant. It accuses AT&T of illegally cooperating with the National Security Agency to make communications on AT&T networks available to the spy agency without warrants.

    "Of the Highest Order"

    The government intervened in the case, telling Walker that Bush's surveillance program, adopted after the Sept. 11 terror attacks, is "a secret of the highest order."

    The government argued that divulging any information about any alleged collusion between AT&T and the government to eavesdrop on Americans could subject AT&T employees and facilities to attack and would enable terrorists "to communicate more securely."

    The state secrets defense, first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit, has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny.

    The high court has upheld the legal tactic as recently as January, when it rejected an appeal from a former covert CIA officer who accused the agency of racial discrimination.

    "Wholesale Surveillance"

    The president confirmed in December that the NSA has been conducting warrantless surveillance of calls and e-mails thought to involve al-Qaida terrorists if at least one of the parties to the communication is outside the United States.

    The administration contends the program is legal and necessary, but has been mum on whether purely domestic calls and electronic communications are being monitored, as the lawsuit alleges.

    Under a deal reached this month with Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, Bush agreed to support a bill that could submit the program to the secretive Foreign Intelligence Surveillance Court for a constitutional review.

    The EFF asked Walker to rule on whether the president possesses wartime powers to authorize warrantless eavesdropping in the United States. The EFF alleges that San Antonio-based AT&T, which neither confirms nor denies the allegations, practices "wholesale surveillance" of its customers.

    The case is Hepting v. AT&T Inc., 06-0672.

    Go to Original

    Surveillance Bill Meets Resistance in Senate
    By Dan Eggen
    The Washington Post

    Friday 21 July 2006

    A Senate surveillance bill personally negotiated by President Bush and Vice President Cheney ran into immediate trouble this week, as Democrats and other critics attacked the proposal while key GOP leaders in the House endorsed a different bill on the same topic.

    The Senate legislation, drafted during negotiations between the White House and Sen. Arlen Specter (R-Pa.), would allow the administration to submit the National Security Agency's warrantless surveillance program to a secret intelligence court for review of its legality.

    The proposal was billed as a rare and noteworthy compromise by the administration when unveiled last week. But the legislation quickly came under attack from Democrats and many national security experts, who said it would actually give the government greater powers to spy on Americans without court oversight.

    In the House, a competing bill introduced by Rep. Heather A. Wilson (R-N.M.) was endorsed this week by two key GOP leaders: Peter Hoekstra (R-Mich.), the House intelligence committee chairman, and F. James Sensenbrenner Jr. (R-Wis.), head of the House Judiciary Committee.

    Specter, chairman of the Senate Judiciary Committee, canceled a markup session for his proposal that had been scheduled for yesterday, announcing plans instead for a full committee hearing Wednesday on the Foreign Intelligence Surveillance Act (FISA), the 1978 statute at the center of the debate.

    The developments add to the uncertainty surrounding the eavesdropping program, which allows the NSA to intercept telephone calls and e-mails between the United States and locations overseas without court approval if one of the parties is suspected of links to terrorism.

    The program - secretly ordered by Bush after the Sept. 11, 2001, attacks but not revealed publicly until media reports in December - has been the focus of fierce congressional debate. The Justice Department has spent much of its time fending off a flurry of legal challenges to the program in the courts, including a class-action lawsuit that was allowed to proceed yesterday by a federal judge in California.

    Specter's proposal would, among other things, allow the transfer of all pending lawsuits to a secret FISA appeals court that could throw the cases out for "any reason." The bill would also allow - but not require - the administration to seek legal approval for the NSA program from another secret court that administers FISA.

    The legislation also would lengthen the amount of time the government could spy on alleged terrorism suspects before receiving warrants, and would explicitly affirm the president's "constitutional authority" to conduct spying programs on his own.

    Specter defended the proposal during a committee hearing on Tuesday, calling the agreement with Bush "a major breakthrough" that included necessary but acceptable compromises. He also argued that the language acknowledging Bush's legal authority has no real impact but was insisted on by White House negotiators.

    "I do believe that it would be a significant precedent if we work this out and the president fulfills a commitment to refer to FISA," Specter said.

    But critics object to the proposal, arguing it would effectively gut the FISA law and give the government too much leeway in clandestine surveillance. Opponents also complain that the bill would allow the FISA court to approve surveillance programs as a whole, rather than reviewing warrants for specific cases as it does now.

    Other GOP proposals - including bills proposed by Wilson and Sen. Mike DeWine (R-Ohio) - are also opposed by Democrats and civil-liberties groups because they formally authorize the NSA program. But the scope of the Wilson bill, for example, is more limited than Specter's, and requires the executive branch to brief all members of the House and Senate intelligence committees.

    Rep. Jane Harman (D-Calif.), ranking Democrat on the House intelligence committee, said she opposes all of the GOP proposals dealing with the NSA issue, calling them "solutions in search of a problem."

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    Staff writers Charles Babington and Juliet Eilperin contributed to this report.