Today’s Must ReadAs expected, the Senate intelligence committee has passed its surveillance bill. Also as expected, retroactive legal immunity for telecommunications companies complying with President Bush’s warrantless surveillance program is part of the bill. Not exactly as expected: it won’t be the FISA Court that determines who complied with the program. It will be the attorney general:
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.
So you’ll never know, if the Senate bill becomes law, if your phone company gave any communications material when the National Security Agency came calling without a warrant. Prediction: as of January 2009, Michael Mukasey can have any sinecure he likes with the telecom company of his choice. (Well, maybe not Qwest.)
In addition to the telecom provision, the bill also doesn’t give the FISA Court any up-front role in foreign-targeted surveillance, unlike the Dems’ now-stalled Restore Act in the House. It seems from this early report that the bill’s major difference with the Protect America Act is that the FISA Court will have a larger role in reviewing the government’s so-called minimization procedures — that is, how NSA analysts redact identifying information of U.S. persons caught up in the surveillance web. For this, remarked Sen. Jay Rockefeller (D-WV), chairman of the intelligence committee, “FISA has a much larger role now.”
Only Senators Russ Feingold (D-WI) and Ron Wyden (D-OR) voted against the bill. The two holdouts got a proposal into the measure to “get a court order to eavesdrop on Americans wherever they are in the world,” according to the AP. But that’s unlikely to actually 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 goes next to the Senate Judiciary Committee; Chairman Patrick Leahy (D-VT) indicated during Mukasey’s hearings that he’s going to approach the bill with skepticism. If that doesn’t stop the measure from moving forward, Sen. Chris Dodd (D-CT) has promised to block any surveillance bill that includes telecom immunity. But if the bill goes back to the drawing board, there’s no guarantee that a new version will be more amenable to civil libertarians.
Update: This post originally reported that the committee passed the surveillance bill this morning, when it in fact passed the bill yesterday. I regret the error.