By Ellen Nakashima
Washington Post Staff Writer
Sunday, October 7, 2007
House Democrats plan to introduce a bill this week that would let a secret court issue one-year "umbrella" warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually.
The bill is likely to resurrect controversy that erupted this summer when Congress, under White House pressure, rushed through a temporary emergency law that expanded the government's authority to conduct foreign surveillance on U.S. soil without a warrant. The Protect America Act, which expires in February, has been criticized as being too broad and lacking effective court oversight.
The Democrats' legislation, drafted by the Intelligence and Judiciary committee chairmen, is aimed to reconcile civil liberties, privacy and national security concerns. It would overhaul the Foreign Intelligence Surveillance Act (FISA), a 1978 law amended many times that the Bush administration argues has been outstripped by technology.
"Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order," said James X. Dempsey, Center for Democracy and Technology policy director. "So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans."
The bill would require the Justice Department inspector general to audit the use of the umbrella warrant and issue quarterly reports to a special FISA court and to Congress, according to congressional aides involved in drafting the legislation. It would clarify that no court order is required for intercepting communications between people overseas that are routed through the United States. It would specify that the collections of e-mails and phone calls could come only from communications service providers -- as opposed to hospitals, libraries or advocacy groups. And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.
A target is defined as a person, group, cell or government of interest to a foreign intelligence investigation.
"Democrats have made huge strides in making improvements over the Protect America Act," said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union. "Yet we think that the Constitution requires as a minimum that an individualized warrant is required whenever an American's communications are targeted. This is going to be the big sticking point."
Democrats are wary of being called weak on national security. That concern is exacerbated by the government's withholding of details on its surveillance activities that would enable Congress to gauge whether expanded powers are needed, said Mark Agrast, senior fellow at the Center for American Progress.
The bill would not include a key administrative objective: immunity for telecommunications firms facing lawsuits in connection with the administration's post-Sept. 11 surveillance program. House Democrats have said that as long as the administration withholds requested documents explaining the basis for the warrantless surveillance program, they cannot consider immunity for firms alleged to have facilitated it.
The White House on Friday evening told the chairmen of the Senate and House intelligence and judiciary committees that it would put together that information by Oct. 22 but would not say when or whether it would make the information available to lawmakers.
"We have told the White House for weeks that the House plans to consider FISA legislation on October 17," said a senior Democratic congressional aide involved in the White House negotiations. "How can members of Congress consider any proposal for immunity if the documents relating to the company's conduct aren't even being assembled by White House lawyers until October 22?"
In the Senate, Democrats are working with Republican colleagues on a bill to be introduced this month that probably will contain some form of relief for telecom companies -- an issue that was sidestepped in August to help win passage of the Protect America Act.
Four possibilities are being discussed, said a Senate aide familiar with the discussions. The broadest would be blanket immunity, which would immunize anyone, including government officials, who had anything to do with any surveillance program. That is the approach the government favors and is strongly opposed by civil liberties advocates.
The second is targeted immunity, in which companies that can prove they were acting in good faith would be granted immunity from prosecution. The third is substitution, in which the government would replace the defendant in the lawsuit. Finally, there is indemnification. The cases would proceed through the court system, and if there were financial penalties, the government would assume them, the aide said.
Aides spoke on condition of anonymity because they are not authorized to speak on the record.
Adding a new perspective on the debate, a group of prominent computer scientists from organizations including Sun Microsystems, Columbia University and the University of Pennsylvania recently warned that the current emergency law opens doors to the interception of purely domestic communications without a warrant. The computer scientists are concerned that the government's actions could threaten the privacy and security of U.S. communications.
Administration officials have testified that any information gathered that involves an American who is not a target will be "minimized" -- their identities blacked out -- so that their privacy is protected.
Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said carriers that are alleged to have participated in the government's warrantless surveillance program want immunity to halt pending cases, while those who did not are either agnostic or do not want their competitors to get a free pass.
"It's a tough call," he said. "If they were breaking the law, it was not out of any greed -- there was no remuneration or benefit to their business. It was from a sense of patriotism and interest in protecting against terrorist attack."