Published November 15, 2007
WASHINGTON – The House voted to strengthen court oversight of the government's surveillance of terrorist suspects but stopped short of providing legal immunity to telecommunication companies that helped eavesdrop on Americans.
The Democratic bill, approved 227-189, was a rebuke to President George W. Bush, who has promised to veto any legislation that does not shield telecom companies from civil lawsuits. About 40 civil suits have been filed alleging the companies broke wiretapping and privacy lawsuits for monitoring phone calls and e-mails without permission of a secret court created 30 years ago for that purpose.
Bush argues that such lawsuits could bankrupt the telecoms, reveal classified information and discourage cooperation with legal surveillance requests.
House Judiciary Committee Chairman John Conyers, a Democrat, left the door open to an immunity deal in the future. But he said the White House must first give Congress access to classified documents specifying what the companies did that requires legal immunity.
"Until then, it's out," Conyers said.
House Republicans favor immunity.
"These companies deserve our thanks, not a flurry of harassing litigation," said Rep. Lamar Smith, the Judiciary Committee's top Republican.
The House bill would allow unfettered telephone and e-mail surveillance of foreign intelligence targets but would require special authorization if the foreign targets are likely to be in contact with people inside the United States — a provision designed to safeguard Americans' privacy.
The special authorization is called a "blanket" or "umbrella" warrant and would let the government obtain a single order that authorizes the surveillance of multiple targets.
Republican critics say even blanket warrants would impede intelligence agents by slowing their ability to collect intelligence on terrorist suspects.
House Speaker Nancy Pelosi, a Democrat, said the bill balances security and civil rights.
"It defends Americans against terrorism and other threats, protects Americans' civil liberties and restores checks and balances," she said. "No president should have inherent authority to collect (intelligence) on Americans without doing it under the law."
It was the House's second attempt in recent weeks to pass an eavesdropping bill, and small changes made by Democrats since the first attempt held their party's slim House majority together. Last month, House Republicans used a procedural maneuver to force the withdrawal of a similar bill just before a vote.
The new bill tightens rules on the sharing of identifying information gleaned from electronic surveillance that involves Americans. It provides protections against "reverse targeting" — that is, using unfettered foreign surveillance to secretly monitor Americans. It increases the size of the secret court that oversees intelligence. It also prohibits future presidents from conducting electronic surveillance outside the procedures established by the 30-year-old Foreign Intelligence Surveillance Act.
This so-called exclusivity provision would undermine Bush's claim that Congress' approval of the use of military force after the terrorist attacks of Sept. 11, 2001, was all the approval he needed to bypass FISA and eavesdrop inside the United States without court approval.
The White House wants a permanent rewrite of the law, contending that changes in telecommunications technology have made it an obstacle to intelligence-gathering. FISA requires the government to obtain court approval before conducting electronic surveillance on U.S. soil, even if the target is a foreign citizen in a foreign country. However, many purely international communications are now routed through fiber optics cables in the U.S.
The White House wants authority to monitor foreign communications with Americans without first getting court approval, as long as the American is not the intended target of surveillance.
The White House opposes the exclusivity provision, saying it encroaches on the president's constitutional powers.
Earlier Thursday, the Senate Judiciary Committee punted on the question of telecom immunity.
That decision — the main sticking point in the attempt to rewrite the law — will be decided in full debate on the Senate floor, said Committee Chairman Sen. Patrick Leahy, a Democrat.
The Senate panel rejected, 11-8, an attempt to strip the immunity provision out of the bill. It is sending a rewrite bill to the floor that does not address telecom immunity either way.
Leahy said granting immunity would give the Bush administration a "blank check." Sen. Arlen Specter of Pennsylvania, the panel's top Republican, said court cases may be the only way Congress can learn how far outside the law the administration has gone in eavesdropping.
When the full Senate takes up the bill, Specter is likely to offer a compromise that would shield the companies from financial ruin but allow lawsuits to go forward by having the federal government stand in for the companies at trial.