On Domestic Spying Legislation, Talk Continues

In hearings Wednesday meant to publicly discuss legislation that would fundamentally alter laws that limit presidential power to spy, many on the Senate Judiciary Committee voiced objections to a bill recently passed by the Senate Intelligence Committee.

Congress rushed through a broad expansion of spying powers before their summer recess. The so-called Protect America Act, legislation handed down from the Bush administration, passed despite a majority of Democrats in both the Senate and House voting against it. The much-criticized act will expire early next year. The Bush administration has been pushing to get the expanded spy powers made permanent by Congress. Recently the House Judiciary Committee passed a revised spying bill that retained many of the expanded spying powers of the Protect America Act but restored some Congressional and Judicial oversight. The bill stalled before it could be voted on by the full House.

The Senate bill, SB 2248, includes a provision that would grant retroactive immunity for telecommunication companies that cooperated with the Bush administration's potentially illegal spying programs. This immunity is a key sticking point for many legislators because it would effectively shut down many pending lawsuits against the telecoms. This bill, sponsored by Senator Jay Rockefeller (D-West Virginia), passed the Senate Intelligence Committee with support from Democrats and Republicans, but has since come under fire for the immunity provisions.

In his opening statement Wednesday, Judiciary Committee Chairman Patrick Leahy (D-Vermont), said "The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass." He added, "Immunity is designed to shield this administration from any accountability for conducting surveillance outside the law."

The grant of immunity for telecoms was a top priority for the main witness, Assistant Attorney General for National Security Kenneth Wainstein. On behalf of the Bush administration, Wainstein said, "We believe this immunization provision is necessary both as a matter of fundamental fairness and as a way of ensuring that providers will continue to provide cooperation to our surveillance efforts."

Major lawsuits against telecom companies accused of cooperating with illegal spying are currently proceeding, with the Bush administration fighting to have them dismissed. According to Leahy, these lawsuits have been an integral part of uncovering the facts of the administration's spying programs.

Wainstein argued that lawsuits should be brought against the government, not against companies who cooperated in spying. Leahy shot back, calling Wainstein's argument "a catch-22," because when people have tried to sue the government for illegal spying, the government tries to get the cases thrown out to prevent them from revealing "state secrets."

Ranking Judiciary Committee member Arlen Specter (R-Pennsylvania), echoed Leahy's concern about cutting off lawsuits against the telecoms, saying that Congress would be "undercutting a major avenue of redress."

Aside from granting immunity for telecoms, the bill greatly expands the ability of the government to spy without rigorous oversight according to the ACLU. In a press release the ACLU criticized the inclusion of "basket warrants" that, according to the ACLU "give federal agents the power to intercept Americans' communications without the individual warrants that the Fourth Amendment requires."

The Senate bill was criticized by Senator Russ Feingold (D-Wisconsin), for lacking real oversight mechanisms and for being a rushed attempt to change a critical law. "... the product of the Intelligence Committee doesn't do the job. There can be as much bipartisanship and collegiality as you can possibly have, but the bill still I don't think is adequate, and I think the mere fact that it's bipartisan, obviously, doesn't make it constitutional," Feingold said.

In tense questioning, Feingold grilled Wainstein regarding the role of the Foreign Intelligence Surveillance Court, the secret court that was intended to oversee and sign off on all domestic surveillance activities since the Nixon administration.

The current Senate bill requires the government to allow the court to review the "minimization procedures," that are supposedly in place to keep Americans from being caught up in large surveillance efforts and from being spied on without a warrant.

Feingold asked Wainstein what the court could do if it did not approve of the government's minimization procedures. Wainstein answered that the court could "make sure they're reasonable," but he added that the bill "does not have them conducting ongoing compliance reviews of those minimization procedures."

Feingold opposed this toothless oversight, saying "... this involves a court that would have the opportunity to review these minimization procedures - and I hope my colleagues are hearing this - with no ability to do anything about it, no ability to say to the administration, 'You screwed up and you got to change this.'"

Both Senators Feingold and Dianne Feinstein (D-California) asked Wainstein about the constitutional authority of the executive branch to conduct surveillance not authorized by Congress. Wainstein was evasive, pointing out that he is not a constitutional scholar and claiming that he would have to go back and review the law before offering his opinion.

In legal arguments and opinions, the Bush administration has claimed that, during wartime, the executive branch has the power to exceed legal limits on spying imposed by Congress. This issue has not been resolved, but was clearly on Feinstein's mind when she stated that she believes "the first part of the Terrorist Surveillance Program was illegal." Her office did not respond to a request for further comment on this allegation.

According to Judiciary Committee spokesperson Erica Chabot, the bill will be referred to the Judiciary Committee before it reaches the full Senate. Members of the Judiciary Committee will be able then to offer amendments and address their concerns with the current legislation.

Matt Renner is an assistant editor and Washington reporter for Truthout.

© Scoop Media