Spying Powers Face More Tests

Sen. Patrick Leahy (D-Vt.), Sen. Russ Feingold (D-Wis.) and Sen. Christopher Dodd (D-Conn.) (WDCpix)

For privacy advocates and civil libertarians, June (not April) was the cruelest month.

First, House Democratic leaders passed a long-negotiated compromise bill expanding the Bush administration’s electronic surveillance authority, including legal immunity for any wrongdoing that the phone companies might have committed in cooperating without court oversight. Days later, the Senate moved overwhelmingly toward passage of the same bill, which stalled last week due more to time constraints than to lawmaker opposition.

Illustration by: Matt Mahurin

Somewhere in the mix, Sen. Barack Obama (Ill.) — the presumptive Democratic presidential nominee and a fierce opponent of telecom immunity in the past — announced his support for the compromise bill (albeit with the hedge that he would later work to remove the immunity language). The flurry of activity has led liberal voters to skewer Democratic leaders for placing campaign-trail fears above constitutional rights — and to wonder who in Washington remains willing to fight for civil liberties within the thorny context of national security.

Next week, they will have their answer.

The Senate on Tuesday is expected to take up three amendments to the House-passed compromise that expands White House spying powers under the Foreign Intelligence Surveillance Act, or FISA. All three aim to hold the telecom companies to account for their cooperation in the administration’s warrantless wiretapping program, which, in the name of fighting terrorism, allowed the National Security Agency to intercept some domestic communications without a court order. The program was launched shortly after the 9/11 attacks, but wasn’t exposed until The New York Times broke the story in late 2005.

Under one amendment, the telecom immunity provision would be stripped out of the bill completely. The proposal is sponsored by Sens. Christopher Dodd (D-Conn.), Russ Feingold (D-Wis.) and Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee. A proposal to eliminate the immunity language, offered earlier in the year, failed by a wide margin, 67 to 31.

Feingold, who played a central role in delaying the final FISA vote until after the July 4 recess, released a video this week thanking the supporters of his push. “I teased some of my colleagues,” he says in the video. “I said we can celebrate the Constitution on July 4 and maybe when you come back you’ll decide not to tear it up.”

A second amendment, sponsored by Sen. Arlen Specter (Penn.), the highest ranking Republican on the Judiciary Committee and a prominent critic of the administration about this program, would empower the court to deny the phone companies their immunity if it found that the administration’s actions were unconstitutional.

The final amendment, sponsored by Sen. Jeff Bingaman (D-N.M.), would delay the effective date of the immunity provision until inspectors general of the Dept. of Justice, the Pentagon and several other agencies have finished an investigation into the warrantless surveillance program and reported their findings to Congress. That investigation is already included in the House-passed compromise soon to be tackled in the Senate. But privacy groups argue that the investigation would hold greater significance if the conclusions can inform how to handle the participating telecoms.

“[T]he current bill puts the cart before the horse, by granting immunity from the law to phone companies before the investigation has even begun,” Kevin Bankston, a senior attorney with the Electronic Frontier Foundation, a California-based electronic privacy watchdog, wrote on the group’s Web site last week. “If the Senate is resolved to pass legislation granting immunity, it ought to at least know what conduct it’s immunizing.”

The White House, which supports the compromise bill, has vowed to veto any proposal without the immunity provision. The administration claims that removing the language would frighten the telecoms from participating in surveillance programs in the future.

Bankston said that the nuanced approach of the Bingaman amendment has the best hope of passing the upper chamber next week — though its chances remain slim. The Electronic Frontier Foundation has joined the American Civil Liberties Union in urging senators to support the amendment.

Meanwhile, it’s unclear whether Obama, who voted earlier in the year against telecom immunity, will take time from the campaign trail next week to back up his vow to fight the provision this time around.

Calls and emails to Obama’s offices were not returned Tuesday.

If Feingold is any influence, the presidential hopeful will have an easy choice. “It’s a huge giveaway,” Feingold said of the compromise. “No senator — especially no Democrat — should be voting for this legislation.”