The House Friday easily approved a compromise bill setting new electronic surveillance rules that effectively shield telecommunications companies from lawsuits arising from the government's terrorism-era warrantless eavesdropping on phone and computer lines in this country.
The bill, which was passed on a 293-129 vote, does more than just protect the telecoms. The update to the 30-year-old Foreign Intelligence Surveillance Act is an attempt to balance privacy rights with the government's responsibility to protect the country against attack, taking into account changes in telecommunications technologies.
"This bill, though imperfect, protects both," said Rep. Jane Harman, D-Calif., and a former member of the intelligence committee.
President Bush praised the bill Friday. "It will help our intelligence professionals learn enemies' plans for new attacks," he said in a statement before television cameras a few hours before the vote.
The House's passage of the FISA Amendment bill marks the beginning of the end to a monthslong standoff between Democrats and Republicans about the rules for government wiretapping inside the United States. The Senate was expected to pass the bill with a large margin, perhaps as soon as next week, before Congress takes a break during the week of the Fourth of July.
The government eavesdropped on American phone and computer lines for almost six years after the Sept. 11 attacks without permission from the Foreign Intelligence Surveillance Court, the special panel established for that purpose under the 1978 law. Some 40 lawsuits have been filed against the telecommunications companies by groups and individuals who think the Bush administration illegally monitored their phone calls or e-mails.
The White House had threatened to veto any surveillance bill that did not also shield the companies.
The compromise bill directs a federal district court to review certifications from the attorney general saying the telecommunications companies received presidential orders telling them wiretaps were needed to detect or prevent a terrorist attack. If the paperwork were deemed in order, the judge would dismiss the lawsuit.
It would also require the inspectors general of the Justice Department, Pentagon and intelligence agencies to investigate the wiretapping program, with a report due in a year.
Critics of the bill say dismissal is a foregone conclusion.
"These provisions turn the judiciary into the administration's rubber stamp," said Rep. Zoe Lofgren, D-Calif. She opposes the bill.
Opponents of immunity believe civil lawsuits are the only way the full extent of the wiretapping program will ever be revealed.
Key senators voiced strong opposition to the compromise, although they're unlikely to have the votes to either defeat or filibuster the bill. Sen. Arlen Specter of Pennsylvania, the top Republican on the Senate Judiciary Committee, condemned the immunity deal. He said that nothing in the new bill would prevent the government from once again wiretapping domestic phone and computer lines without court permission.
Specter said the problem is constitutional: The White House may still assert that the president's Article II powers as commander in chief supersede statutes that would limit him actions.
"Only the courts can decide that issue and this proposal dodges it," Specter said.
Speaker of the House Nancy Pelosi of California disputed that, saying FISA would from now on be the authority for the government to conduct electronic surveillance.
"There is no inherent authority of the president to do whatever he wants. This is a democracy, not a monarchy," she said.
Some civil liberties and privacy groups are also opposing the bill. They object not only to the immunity provision but to what they consider the weakening of the FISA court's oversight of government eavesdropping. For example, the government can initiate a wiretap without court permission if "important intelligence" would otherwise be lost. It has a week to file the request for approval with the court, and the court has 30 days to act on it. But if the court objects to how the government is carrying out the wiretap, it could be weeks before those methods are changed or stopped.
"What we have here is the opportunity for the government to commit mass untargeted surveillance," said Texas Democratic Rep. Sheila Jackson Lee.
Opponents also contend the privacy of Americans who communicate with people overseas is not adequately protected. The bill would allow the government to tap the foreigner's calls without court approval, and critics contend that innocent American conversations can be swept up in that.
The Foreign Intelligence Surveillance Amendment bill also would:
- Require FISA court permission to wiretap Americans who are overseas.
- Prohibit targeting a foreigner to secretly eavesdrop on an American's calls or e-mails without court approval.
- Allow the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
- Allow eavesdropping in emergencies without court approval, provided the government files required papers within a week.
- Prohibit the government from invoking war powers or other authorities to supersede surveillance rules in the future.