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Bush and Congress in surveillance standoff

The attention-getting issue in the congressional debate over surveillance is retroactive legal immunity for telecommunications firms that may have cooperated in the National Security Agency program. But that may be the wrong focus.
Senate Judiciary Committee Chairman Patrick Leahy sent a surveillance bill to the Senate floor Thursday.
Senate Judiciary Committee Chairman Patrick Leahy sent a surveillance bill to the Senate floor Thursday. Saul Loeb / AFP - Getty Images
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If you think your conversations were overheard in President Bush’s National Security Agency surveillance program, go sue the phone company.

But will you be able to sue?

That was the question getting much attention in Thursday’s debates in the House and Senate over parallel bills to set new rules for the NSA surveillance program.

The Senate Judiciary Committee, in a deft step by its chairman Sen. Patrick Leahy, D-Vt., decided on a party-line vote to send to the full Senate a bill that does not include retroactive legal immunity for telecommunications firms that may have cooperated in the NSA program.

That move came even though the Judiciary Committee had just voted, with three Democratic senators joining all nine Republicans, to reject an amendment by Sen. Russ Feingold, D-Wis., which would have denied telecom firms immunity for their cooperation with the NSA.

That immunity provision was in the bipartisan bill passed last month by the Senate Intelligence Committee by a vote of 13 to 2.

Telecom firms acted in 'good faith'
Intelligence Committee chairman Sen. Jay Rockefeller, D-W.V. explained that “in the unique historical circumstances of the aftermath of September 11, 2001” the companies “had a good faith basis for responding to the requests for assistance they received” from the attorney general and intelligence agencies.

It’s not clear which Senate committee chairman will win during the floor debate, Leahy or Rockefeller.

Meanwhile, the Democratic bill passed by the House Thursday night would bring overseas surveillance under the supervision of judges on the special court set up by the Foreign Intelligence Surveillance Act (FISA).

The House bill would allow Americans who claim that their privacy was violated by the NSA surveillance to sue telecommunications companies.

Director of National Intelligence Mike McConnell has recommended that Bush veto the bill. The House vote was 227 to 189, well short of the two-thirds majority needed to override a veto.

Since the current law governing intelligence surveillance expires in February, Bush and Democratic leaders in Congress are headed for yet another stare-down confrontation.

Is immunity the wrong focus?
One close observer of the Judiciary Committee’s day-long debate, former Clinton administration official Morton Halperin, who is now the executive director of the Open Society Policy Center, a Washington advocacy group, said immunity for telecom firms “is far from the most important issue” in the bill.

The opponents of the Intelligence Committee’s bill “have mistakenly focused on it,” he said. “For some reason opponents of the bill have chosen to focus on that issue, maybe they think it’s the easiest one to explain.”

Of the suits against telecom companies, Halperin predicted, “No one is going to collect (monetary damages) from them. I think in the end the suits will be dismissed either because the plaintiffs are found not to have (legal) standing or because of the state secrets privilege.”

In invoking the state secrets privilege, the government says allowing a court case to go forward would risk disclosing secrets that would threaten grave damage to the defense of the nation.

“The lawsuits are almost pointless,” said Judiciary Committee member Sen. Dick Durbin, D-Ill. “When the state secrets defense is asserted, the lawsuit comes to a grinding halt. The telephone company doesn’t have its day in court and the lawsuit can’t proceed. It is a quandary to find real justice in this situation”

Durbin suggested that the new law allow a judge to review secret surveillance material behind closed doors in his chambers to see what can be used in a suit against a telecom firm without risk to national security.

Collecting Americans' conversations?
In Halperin’s view the most important issue in the bill “is to establish procedures and oversight to assure that this (law) will not be used to collect the conversations of Americans.”

He poses the hypothetical case of a U.S. intelligence agency wire-tapping a Frenchman in Paris.

That Frenchman calls his friend in America and over time, the U.S. spy agency decides that “what the Frenchman is saying is not that interesting, but what the American is saying is very interesting.”

Halperin said there’s nothing in the Senate Intelligence Committee’s bill that would prevent the U.S. spy agency from continuing to wiretap the Frenchman for the purpose of acquiring his conversations with the American.

But the bill passed by the House Thursday night does includes a provision that says if a “significant purpose” of the overseas wiretapping is to acquire conversations of an American, then the government must get a warrant to do the surveillance.

Despite the veto threat, Halperin was sanguine about the amount of agreement: “the executive branch has agreed they are going to do this surveillance through FISA, and the Congress has, almost without exception, agreed that the intelligence agencies should be allowed to acquire the conversations of people overseas without individualized warrants based on probable cause. So 95 percent of this fight is over.”

If you were in a mood for political jiujutsu, it was fun to watch the debate on the House floor Thursday night.

House Republicans have harassed the Democrats over the past several weeks with procedural votes designed to split the majority party on the issue of illegal immigration.

On Thursday the Democratic leadership seemed to have found a way to use the Republicans’ own weapon against them – and GOP members seemed angry about it.

The House bill included a provision that said it did not “prohibit surveillance of, or grant any rights to” illegal immigrants.

Democrats claimed this clause was relevant to the purpose of the bill: foreign intelligence.

But they also took delight in watching Republicans protest at the inclusion of the anti-illegal immigrant provision.

“I’m really moved by the sudden concern for immigrant rights that the other side has begun to display today,” said Judiciary Committee chairman Rep. John Conyers, looking over at the Republicans.

Her voice shaking with anger, Rep. Heather Wilson, R-N.M. said, “This bill would extend rights under our Constitution to foreigners in foreign countries while denying the protection of the Constitution to some 12 million people who are not legally in the United States, when the case law is clear that they do have rights.”

Wilson is running for the Republican nomination for the Senate next year.

By voting against the bill — with its anti-illegal immigrant provision in it  — Republicans may have exposed themselves to campaign attack ads next year that insinuate they think illegal immigrants should have rights.