Senate amends FISA, allows immunity
Robert Lemos, SecurityFocus 2008-07-09

Questions about the Bush Administration's use of wiretapping for much of the past decade will likely remain unanswered, after the U.S. Senate passed on Wednesday a bill that will broaden the intelligence community's surveillance powers and grant immunity to telecommunications companies for their past cooperation.

The bill, known as the FISA Amendments Act of 2008, gives the U.S. government greater leeway in wiretapping foreign terror and espionage suspects and grants legal immunity to telecommunications companies that cooperated with the Bush Administration in the past. The legislation allows intelligence agencies to seek approval for broad wiretap orders lasting a year, gives more time for officials to seek -- and for judges to approve -- a wiretap order in an emergency, and provides that the legislation is the exclusive means through which domestic surveillance can be performed.

"Today the Senate ensured that our national security officials have the tools they need to help protect our country from future terrorist attacks," Senate Minority Leader Mitch McConnell, R-KY, said in a statement. "By passing this bipartisan bill, the Senate has taken decisive action to improve the security of our country and make our homeland safer."

The vote, 69 to 28, ended a nearly one-year debate pitting lawmakers who support greater surveillance powers for the U.S. government against civil libertarians and privacy advocates who fear the law sacrifices freedom and the ability to oversee government for vague assurances of security. When President Bush signs the bill into law, as experts expect him to, nearly 40 lawsuits pending against communications firms will effectively be scuttled.

The pro-privacy Electronic Frontier Foundation blasted Democratic legislators on Wednesday who supported the bill.

"It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program," Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation (EFF), said in a statement.

Revising the 30-year-old Foreign Intelligence Surveillance Act (FISA) has preoccupied Congressional leaders and the Bush Administration ever since the New York Times revealed that the National Security Agency (NSA) had broadly eavesdropped on telephone and Internet communications. The agency had allegedly installed special rooms equipped with wiretapping hardware in important communications hubs with the blessing of major telecommunications firms. A whistleblower has claimed that AT&T had one such room, while a security consultant recently stated that a major cellular telecommunications company allowed a third party to directly connect, via a line known as the "Quantico circuit," into their systems.

The Foreign Intelligence Surveillance Act (FISA) passed in 1978, requires that all government surveillance for intelligence purposes must first be sanctioned by a court order allowing the eavesdropping from the Foreign Intelligence Surveillance Court (FISC). The secretive court, which rarely issues rulings, also allows emergency warrants up to 72 hours after surveillance has begun. Some critics have argued that the 72-hour limit is not long enough to file and get approved a warrant; the latest bill gives intelligence officials up to 7 days to apply for certification and the judge 30 days to approve the surveillance.

The FISA Amendments Act of 2008, or H.R. 6304, is a modified version of legislation that passed in the Senate in February, but which failed to be taken up by the House. The bill has greater oversight than the previous version that passed in the Senate, Dan Holler, Senate relations deputy for The Heritage Foundation, a conservative think tank, said in an interview last week.

"It is a compromise," Holler said. "You are seeing a lot of pressure to get something done."

This week, Democratic senators attempted to amend the current bill with three different provisions that would have dramatically weakened or stripped the immunity provisions from the current legislation. An amendment proposed by Senator Christopher Dodd, D-Conn., would have fully removed the immunity clause, while additional legislation proposed by Senator Arlen Specter, R-Penn., would have forced the courts to determine the constitutionality of the programs before dismissing the lawsuits. A final amendment, proposed by Senator Jeff Bingaman, D-N.M., would have delayed the immunity decision until an investigation revealed the extent and legality of the Bush Administration's eavesdropping.

Each of the amendments was defeated by a healthy margin.

While the U.S. government has succeeded in dismissing all-but-one lawsuit against its various agencies by using a legal provision known as the state-secrets privilege, telecommunications firms continue to face numerous lawsuits seeking to discover the extent of their surveillance of American citizens. The latest bill, which experts predict will be signed quickly by President Bush, gives telecommunications companies the ability to dismiss the lawsuits, if they show written evidence that the U.S. government requested their cooperation.

Granting immunity to telecommunications companies could mean that firms will not question the legality of government requests before complying in the future, Greg Nojeim, senior counsel for the Center for Democracy and Technology, said in a recent interview.

"If this immunity sets a precedent of telecoms expectations in the future, civil liberties protections in the law won't matter, (because) future administrations can do as this one did and skirt the law to get the cooperation of the telecoms," Nojeim said.

The Electronic Frontier Foundation -- which is representing the plaintiffs in Hepting v. AT&T, one of the lawsuits against the telecommunications companies, alleging that AT&T wiretapped millions of its customers -- vowed on Wednesday not to give up the fight.

"We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary," Kurt Opsahl, also a senior staff attorney with the group, said in a statement. "Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

CORRECTION: The article included an incorrect tally of the U.S. Senate vote on H.R. 6304. The legislative body voted 69 in favor of the act and 28 in opposition, with 3 senators failing to vote.

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