By Shailagh Murray
Washington Post Staff Writer
Thursday, July 10, 2008
The Senate easily approved legislation to overhaul government eavesdropping rules in terrorism and espionage cases and effectively granted immunity to telecommunications companies that participated in a secret domestic spying program, ending a contentious debate that has raged for more than two years.
Among the 69 senators who voted "yes" on final passage was Barack Obama (Ill.), who had opposed the immunity provision in earlier versions of the wiretapping bill, a rewrite of the 1978 Foreign Intelligence Surveillance Act. The presumptive Democratic presidential nominee said revisions had alleviated his concerns, but Sen. John McCain's campaign -- and many on the left -- seized on the reversal as a flip-flop of the first order.
"He's willing to change positions, break campaign commitments and undermine his own words in his quest for higher office," said Tucker Bounds, a spokesman for the Arizona Republican.
The bill's 28 opponents included numerous prominent Democrats, including Sen. Hillary Rodham Clinton (N.Y.); Senate Majority Leader Harry M. Reid (Nev.); Senate Majority Whip Richard J. Durbin (Ill.); and Sen. Joseph R. Biden Jr. (Del.), a former presidential candidate now considered a leading contender to share the ticket with Obama.
Lining up with Obama were 47 Republicans and 21 mostly moderate Democrats, including Sens. Dianne Feinstein (Calif.) and Evan Bayh (Ind.).
"Senator Obama has said before that the compromise bill is not perfect," his campaign said in a statement. "Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, Senator Obama chose to support the FISA compromise."
The bill addresses a broad scope of surveillance activities in the aftermath of the Sept. 11 attacks. In certain cases, it limits the government's ability to collect information, but it also provides greater flexibility, an attempt to reflect the changing nature of national security threats in the post-Cold War era.
The new FISA bill clarifies the scope of government intelligence activities, depending on the type and origin of the communication, and provides greater latitude to use technology to track foreign terrorism suspects overseas. The new version continues to require warrants to target Americans in the United States, but no permission is needed to track foreign citizens who are located abroad -- regardless of whether the surveillance passes through U.S-based communication networks. If the overseas target is a U.S. citizen, a warrant would be required -- regardless of where and how the spying takes place.
Although the bill increases judicial and congressional oversight, critics say that law-abiding Americans may be unfairly targeted by the wide-open foreign surveillance provisions. Sen. Christopher S. Bond (Mo.), a leading Republican supporter, countered that the risk was overblown, "unless you have al-Qaeda on your speed dial."
The final FISA revision was crafted after four months of intense negotiations between White House aides and congressional leaders. The administration threatened to veto the bill unless it retroactively protected companies including AT&T, Sprint Nextel and Verizon Communications from civil liabilities, but President Bush said yesterday that he is satisfied with the bill and that he will sign it.
"Today the United States Congress passed a vital piece of legislation that will make it easier for this administration and future administrations to protect the American people," he said.
Opponents of the measure, including Judiciary Chairman Patrick J. Leahy (D-Vt.) and Sen. Christopher J. Dodd (D-Conn.), argued that a legal exemption is at best premature, because details of the wiretapping program are not yet fully known. But a Dodd amendment that would have stripped out the immunity title received 32 votes, all of them from Democrats, including Obama, except for one from Sen. Bernard Sanders (I-Vt.).
"I sit on the intelligence and Judiciary committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program," said Sen. Russell Feingold (D-Wis.), another prominent opponent. "I can promise that if more information is declassified about the program in the future, as is likely to happen . . . members of this body will regret that we passed this legislation."
But Obama and his allies, including Senate intelligence Chairman John D. Rockefeller IV (D-W.Va.) and House Speaker Nancy Pelosi (D-Calif.), countered that FISA and its secret courts would now have the final say on government spying. They pointed to a new "exclusivity" provision as a critical addition guaranteeing that no president could evade court authority in ordering wiretaps, overriding Bush's claim that a wartime president holds the ultimate authority.
Obama's GOP opponents saw a more calculated motive, aimed at sharpening the Democrat's appeal to centrist voters in general-election battleground states. Hours before the vote, the Republican National Committee circulated an Obama statement dated Dec. 17, 2007, asserting that he "unequivocally opposes giving retroactive immunity to telecommunications companies," and would support a filibuster to stop the bill from passing.
McCain, campaigning in Pittsburgh, was absent for the vote. The senator from Arizona has now missed three straight months of votes on the Senate floor, his last vote coming on April 8 on an energy amendment.
Caroline Fredrickson, Washington director of the American Civil Liberties Union, a leader of the opposition, said that the next president will quickly be confronted with other secret surveillance issues. Three provisions in the USA Patriot Act are set to expire next year, including one that grants wide latitude in accessing the library and health records of suspected terrorists.
Liberal opponents of Bush's use of anti-terrorism powers aim to test the next administration by turning the debate about those small provisions into a broader dialogue about the Patriot Act. "You can bet we'll be mounting a fight to fix the Patriot Act that will be bigger than the three expiring provisions," Fredrickson said.
Rockefeller called the new FISA bill "vastly better" than previous versions and "a major, major piece of legislation" that "will serve our nation well." But he also noted that the new FISA language also will expire during the next president's first term. "He will be able to review, along with us, what we have done," the senator said.
Staff writer Paul Kane contributed to this report.