Published January 13, 2015
The Senate Intelligence Committee voted Thursday to strengthen court oversight of government surveillance while protecting telecommunications companies from civil lawsuits for tapping Americans' phones and computers without court approval.
The panel's approval of the bill, 13-2, doesn't guarantee smooth sailing for the legislation. It still must get the blessing of the Senate Judiciary Committee, whose top Republican and Democratic members have expressed skepticism about the immunity provision.
And the bill remains stalled in the House, where it ran aground Wednesday in a partisan dispute over the immunity issue and the broader question of how much oversight power the courts should have over surveillance.
The Senate bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001, and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.
Suits also would be dismissed if the attorney general certifies that a company named in the case provided no assistance to the government. The public record would not reflect which certification was given to the court.
Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said any warrantless wiretapping conducted before the Sept. 11, 2001, terrorist attacks would not be covered by the immunity provision of the bill.
"I think it's fair to say there were interceptions of radio communications on a broad basis" prior to Sept. 11, said Missouri Sen. Kit Bond, the ranking Republican on the committee.
Exactly what electronic surveillance the Bush administration has conducted inside the United States is classified.
Bush administration officials could face criminal charges if they broke wiretapping and privacy laws, Rockefeller said.
"There is no immunity for government officials," Rockefeller said. "It is the administration who must be accountable for warrantless wiretapping."
Rockefeller, who reviewed some secret White House documents on the terrorist surveillance program this week, said nothing he has seen so far makes him believe the program was illegal.
"If this program is so legal why does there have to be this special legal protection?" said Sen. Ron Wyden, D-Ore.
Wyden and Sen. Russell Feingold, D-Wis, opposed the eavesdropping bill because of the immunity provision and concerns that American's privacy would not be adequately protected.
Wyden and Feingold nevertheless succeeded in amending the bill to expand court oversight of government surveillance of Americans overseas. Under current rules, the government can tap Americans' phone and computer lines outside the country if the attorney general certifies that the American is believed to be an agent of a foreign power. The new bill would require the government to get a court order to eavesdrop on Americans wherever they are in the world.
But the measure may not stay in the bill: Director of National Intelligence Michael McConnell objects to the requirement, according to Wyden. Bond said a "problematic amendment" would be changed to satisfy McConnell.
"I think we can make the necessary adjustment and with that I believe the bill would be ... acceptable to him and one which he would recommend," Bond said.
The bill would not require court orders to spy on foreigners, even if they call the United States, which was the feature that stalled the House version. The Senate bill requires only that the secretive Foreign Intelligence Surveillance Court review procedures used to protect the identity of Americans who may be overheard during the surveillance of foreign targets.
"FISA has a much larger role now. It's intertwined and mixed in all of this now," said Rockefeller..
The bill, which would expire in six years, would amend the 1978 Foreign Intelligence Surveillance Act, the law that sets out how the government may legally conduct electronic surveillance.