Democrats Seem Ready to Extend Wiretap Powers
While Democrats are figuring out how to palatably package their support for enhanced surveillance of US residents, let’s remember the “Anti-Terrorism and Effective Death Penalty Act” of 1996, brought by a Republican Congress but signed by Bill Clinton. It limited federal habeas corpus actions to protect state and federal prisoners, by largely barring actions challenging the facts or law in state court rulings, and by setting up strict statutes of limitations for filing habeas corpus actions.
New York Times, October 9, 2007
By ERIC LICHTBLAU and CARL HULSE
WASHINGTON, Oct. 8 — Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.
Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.
As the debate over the eavesdropping powers of the National Security Agency begins anew this week, the emerging measures reflect the reality confronting the Democrats.
Although willing to oppose the White House on the Iraq war, they remain nervous that they will be called soft on terrorism if they insist on strict curbs on gathering intelligence.
A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for N.S.A. eavesdropping that the administration secured in August for six months.
In an acknowledgment of concerns over civil liberties, the bill would require a more active role by the special foreign intelligence court that oversees the interception of foreign-based communications by the security agency.
A competing proposal in the Senate, still being drafted, may be even closer in line with the administration plan, with the possibility of including retroactive immunity for telecommunications utilities that participated in the once-secret program to eavesdrop without court warrants.
No one is willing to predict with certainty how the question will play out. Some Congressional officials and others monitoring the debate said the final result might not be much different from the result in August, despite the Democrats’ insistence that they would not let stand the extension of the powers.
“Many members continue to fear that if they don’t support whatever the president asks for, they’ll be perceived as soft on terrorism,” said William Banks, a professor who specializes in terrorism and national security law at Syracuse University and who has written extensively on federal wiretapping laws.
The August bill, known as the Protect America Act, was approved in the final hours before Congress went on its summer recess after heated warnings from the administration that legal loopholes in wiretapping coverage had left the country vulnerable to another terrorist attack. The measure significantly reduced the role of the foreign intelligence court and broadened the security agency’s ability to listen to foreign-based communications without court warrants.
“We want the statute made permanent,” a spokesman for the Justice Department, Dean Boyd, said Monday. “We view this as a healthy debate. We also view it as an opportunity to inform Congress and the public that we can use these authorities responsibly. We’re going to go forward and look at any proposals that come forth. But we’ll look at them very carefully to make sure they don’t have any consequences that hamper our abilities to protect the country.”
House Democrats overwhelmingly opposed the bill in August and said the administration had been forced them into a corner.
As Congress takes up the new bills, a senior Democratic aide said, House leaders are working hard to ensure that the administration does not succeed in pushing through a bill that would make permanent all the powers it secured in August.
“That’s what we’re trying to avoid,” the aide said. “We have that concern too.”
The bill to be proposed on Tuesday by the Democratic leaders of the House Intelligence and Judiciary Committees would impose more controls over the powers of security agency, including quarterly audits by the Justice Department inspector general. The measure would also give the foreign intelligence court a role in approving, in advance, “basket” or “umbrella” warrants for bundles of overseas communications, a Congressional official said.
“We are giving the N.S.A. what it legitimately needs for national security but with far more limitations and protections than are in the Protect America Act,” said Brendan Daly, a spokesman for Speaker Nancy Pelosi, Democrat of California.
Perhaps most important in the eyes of Democratic supporters, the House bill would not give retroactive immunity to the telecommunications utilities that participated in the eavesdropping. That has been a top priority of the administration. The temporary measure gave the utilities immunity for future acts, but not past deeds.
Private groups are trying to prove in federal court that the utilities violated the law by participating in the program.
A former senior Justice Department lawyer, Jack Goldsmith, seemed to bolster their case last week when he told Congress that the program was a “legal mess” and strongly suggested that it was illegal.
The House bill would also require the administration to disclose details of the program. Democrats say they plan to push the administration to turn over internal documents laying out the legal rationale for the program, something the administration has refused to do.
In the Senate, the chairman of the Intelligence Committee, John D. Rockefeller IV, Democrat of West Virginia, is working with his Republican counterpart, Christopher S. Bond of Missouri, a main proponent of the August plan, to come up with a compromise.
Wendy Morigi, a spokeswoman for Mr. Rockefeller, said that retroactive immunity for the utilities was “under discussion” but that no final proposal had been developed.
The immunity issue may prove to be the crucial sticking point between whatever proposals the House and Senate ultimately pass. Representative Jerrold Nadler, a New York Democrat who was among the harshest critics of the temporary bill, said in an interview he would vigorously oppose any effort to grant retroactive legal protection to telecommunications utilities.
“There is heavy pressure on the immunity, and we should not cave an inch on that,” Mr. Nadler said.
Mr. Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.
“It is not perfect, but it is a good bill,” he said. “It makes huge improvements in the current law. In some respects it is better than the old FISA law,” a reference to the foreign intelligence court.
Civil liberties advocates and others who met House officials on Monday on the proposed bill agreed that it was an improvement over the August plan but were less charitable in their overall assessment.
‘This still authorizes the interception of Americans’ international communications without a warrant in far too many instances, and without adequate civil liberties protections,” said Kate Martin, director of the Center for National Security Studies, who was in the group that met House officials.
Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said she was troubled by the Democrats’ acceptance of broad, blanket warrants for the security agency rather than the individualized warrants traditionally required by the intelligence court.
“The Democratic leadership, philosophically, is with us,” Ms. Frederickson said. “But we need to help them realize the political case, which is that Democrats will not be in danger if they don’t reauthorize this Protect America Act. They’re nervous.
“There’s a ‘keep the majority’ mentality, which is understandable,” she said, “But we think they’re putting themselves in more danger by not standing on principle.”