t r u t h o u t | Report
Thursday 11 October 2007
The House Judiciary Committee approved legislation on Wednesday intended to restore a secret spy court's oversight over the Bush administration's warrantless surveillance activities. Moreover, the bill, in its current form, would not shield phone and Internet companies from multibillion-dollar lawsuits for granting the Bush administration access to its vast networks to conduct warrantless surveillance.
President Bush criticized the new legislation, claiming the bill "would take us backwards," because it did not grant him the broad spy powers he says he needs to track down terrorists. Bush said the bill "must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."
Congressman Jerrold Nadler (D-New York) responded to Bush's assertions during Wednesday's Judiciary Committee hearing saying, "to retroactively immunize anybody and say 'if you broke the law it's OK, we don't want to know about it,' is to surrender the rule of law ... we certainly shouldn't say that you are free to break the law if an administration asks you to in the name of national security ... otherwise you will have lawless administrations like this one getting away with even more than they have."
In August, Congress rushed through a broad expansion of spying powers before they left for summer recess. The so-called "Protect America Act," legislation written largely by White House officials, passed despite a majority of Democrats in both the Senate and House voting against it. The bill that passed out of committee Wednesday, known as "Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective (RESTORE) Act," as it is currently written, would force the Bush administration to adhere to the Foreign Intelligence Surveillance Act (FISA) before conducting surveillance and restore oversight to the independent FISA court, according to proponents of the bill.
While the bill reasserts many of the checks and balances that were removed by the "Protect America Act," it also broadens some spying powers. Previously, surveillance of a person in the United States could be conducted on an emergency basis for three days before receiving authorization from the FISA court. Under the new legislation, the government would be able to conduct surveillance for up to 45 days without court approval. Also, warrants issued by the FISA court would last for up to a year without needing reauthorization.
In response to the proposed bill, Jonathan Turley, George Washington University Professor of Public Interest Law, said, "The new bill is obviously better than the President's approach. But the Democrats are again playing into the White House game of adopting the most extreme position and forcing the Democrats to move to his center." Turley pointed out the bill would keep in place systems that have previously failed to protect privacy rights. "The bill continues the failures of the past. Relying on the inspector general's office and the [Congressional] intelligence committees that failed miserably in the past. The intelligence committee and leading democrats knew of the illegal program and did nothing until the press revealed the facts. Now they are saying that they can be trusted again to protect civil liberties."
The House bill still faces an uphill fight. Congressional Republicans are opposed to the new measures. In the Senate, Democrats are crafting legislation that may provide cover for the telecommunication corporations that took part in the surveillance: retroactive immunity for possibly violating the law by allowing the Bush administration access to their communication networks.
The Senate bill is sponsored by Senator Jay Rockefeller (D-W. Virginia), the Chairman of the Senate Intelligence Committee. He has been working with Senator Kit Bond (R-Missouri) to update FISA, which Bush says is "outdated."
According to a spokesperson for Rockefeller, the Senator may support some form of protection for telecommunication companies. The spokesperson said Rockefeller "is looking at a narrowly crafted telecom liability provision," and he "has indicated that it is an issue that we need to look at." The Senate bill is apparently not yet complete and is tentatively scheduled for committee mark-up on October 18.
According to experts, this retroactive immunity would not just protect the telecommunication companies accused of breaking the law, it would also stifle attempts to uncover possible criminal activity by the Bush administration.
The Electronic Frontier Foundation, a public interest group that focuses on technological issues, represents plaintiffs in a class-action lawsuit against the telecommunications giant AT&T. The suit alleges AT&T violated the privacy rights of its customers in allowing government agencies to monitor customer communications. The Department of Justice attempted to intervene in the case by asking the court to dismiss the suit to protect "state secrets." The suit is awaiting a decision by Judges from the 9th Circuit Court of Appeals and could ultimately make its way to the Supreme Court.
Rebecca Jeschke, a spokesperson for the Electronic Frontier Foundation (EFF) said the attempt by the executive branch to prevent these types of cases from being heard in court undercuts the constitutionally mandated separation of powers. "The courts need to review whether it is acceptable for the executive branch to tell companies to violate the Federal Telecommunications Act, a law that was passed by Congress. The courts are the ones who can decide if the Administration's actions are constitutional."
Jeschke also said that the Bush administration has been adamant about giving retroactive immunity for companies because "the administration is trying to protect itself from information about their activities that would come out in lawsuits against the companies." Jeschke added, "This is about sweeping our case and these massive violations of law under the rug."
In a statement, Senator Russ Feingold (D-Wisconsin) said Congress "must reject the President's demand for immunity for private entities that allegedly cooperated with his illegal warrantless wiretapping program while the President continues to hide his administration's legal opinions justifying that program from Congress."
The Senate Judiciary Committee has issued subpoenas for the administration's legal justification of its spying program, but the administration has refused to cooperate.
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