House Leaders Propose a Responsible Compromise on Intelligence Surveillance. Again.

Mark Agrast writes that House leaders have proposed a responsible compromise on intelligence surveillance. Again.

Updated March 14, 2008

Today the House of Representatives approved a new intelligence surveillance bill proposed by House leaders in an effort to find a reasonable compromise between the RESTORE Act, which was passed by the House last fall, and a Senate alternative supported by the Bush administration.

Like the RESTORE Act, this new bill is a responsible and balanced measure that would enhance the government’s ability to monitor foreign terrorists and spies while providing critical safeguards to ensure that the freedoms of law-abiding Americans are not infringed.

Such safeguards were conspicuously absent from the Protect America Act—the now-expired measure hastily approved last August, which gave the administration sweeping powers to intercept—without judicial review—the international communications of Americans who have no connection to terrorism or espionage.

The Senate measure restores some modest civil liberties protections but still falls far short. Moreover, it grants blanket, retroactive immunity to telecommunications companies for their alleged cooperation with the president’s secret warrantless eavesdropping program after 9/11. Such immunity would reward those who knowingly broke the law and prevent the American people from learning the truth about the program.

House and Senate leaders have been negotiating for weeks to try to narrow their differences, but the Bush administration and its congressional allies refuse even to discuss a compromise. They have boycotted the negotiations and even blocked an extension of the PAA—a bill the president claimed was essential to our security—in an effort to pressure the House to accept the Senate bill as is.

The president has stubbornly refused to provide a reasoned justification for the extraordinary powers he demands. Instead, he and his surrogates have engaged in a campaign of fear-mongering and distortions, issuing dire pronouncements that the nation will be left vulnerable and “Americans will die” if Congress fails to yield.

For example, senior administration officials have repeatedly claimed that: current law requires the government to get a warrant to listen in on conversations between foreign terrorists outside the United States (it doesn’t); the process for getting a warrant to eavesdrop on Americans is too slow and cumbersome (it isn’t); if the PAA expires, critical intelligence would be lost and America would “go dark” (it didn’t); and telecommunications companies would refuse to cooperate with lawful wiretap orders unless they are given immunity for their past illegal actions (they haven’t).

Many members of Congress are understandably reluctant to challenge the administration on matters related to foreign intelligence. The issues are complicated. The stakes are high. And much of the information they need to form a judgment is withheld from them.

This may help explain why the administration’s scare tactics were enough to stampede both the House and the Senate into passing the PAA last summer without so much as a committee hearing. But when Congress reconvened in the fall, House leaders were determined to reassert their role as a coequal branch of government. When the president demanded permanent legislation that would lock in the PAA and immunize the telephone companies, the House passed the RESTORE Act instead. In February, when the president refused to accept a short-term extension of the PAA, House leaders did not flinch. The law expired, and the heavens did not fall.

For seven years, Congress and the American people have permitted the Bush administration to use the very serious threat of terrorism to undermine our core values and institutions, to erode civil liberties, and to degrade the rule of law, all in exchange for the empty promise of greater security. Perhaps at last some lessons have been learned.

The American people are prepared to pay a price for security. But they expect their leaders to do the hard work to ensure that we do not sacrifice bedrock American values and our way of life. They expect their representatives to shoulder their responsibility under our system of separated powers, not to abdicate it.

Congress must insist on sensible policies that can produce reliable, actionable intelligence without sacrificing our liberties. The bill approved by the House today is a major step in the right direction. It:

  • Makes clear that the government is not required to obtain an individualized court order to conduct surveillance of “foreign-to-foreign” communications between non-Americans that merely pass through the United States.
  • Does require the government to obtain an order from the Foreign Intelligence Surveillance Court (the “Court”) to target Americans, whether they are in the U.S. or abroad.
  • Does not require a court order when the government targets non-Americans who are reasonably believed to be outside the United States. Instead, the bill permits the Attorney General, or AG, and the Director of National Intelligence, or DNI, to jointly authorize such surveillance for up to one year. However, the surveillance may not begin (except in emergencies) unless the Court has given its prior approval to targeting and minimization procedures designed to ensure that Americans are not targeted and their communications are not improperly disseminated. The bill also provides for the Court not only to approve the procedures but to exercise continuing oversight to ensure that they are being complied with.
  • Prohibits “reverse targeting,” defined as the “intentional targeting of a person reasonably believed to be located outside the United States in order to target a particular, known person reasonably believed to be in the United States.” The bill requires the AG and the DNI to adopt guidelines that ensure compliance with the prohibition, and mandates Inspector General reports to Congress as to whether the guidelines are being followed.
  • Reaffirms that FISA is the exclusive means by which surveillance may be conducted in the United States for foreign intelligence purposes, and that Congress can provide for additional means only through an express statutory authorization.
  • Provides for the surveillance authorities to sunset on December 31, 2009—the same date that expiring provisions of the PATRIOT Act are due to run out. This will ensure that Congress takes another look at the subject once it has had an opportunity to assess how well the legislation has operated.
  • Requires agency Inspectors General to prepare a report to Congress regarding the warrantless surveillance program authorized by the president after 9/11. It also establishes a bipartisan commission to investigate the program and report to Congress and the president on its conclusions.
  • Declines to grant blanket, retroactive immunity to telecommunications companies facing lawsuits for their alleged cooperation with the warrantless surveillance program. Instead, it preserves the current FISA provisions that provide accountability by giving immunity from suit to companies that obey the law, not those that break it. The bill provides relief to companies that complied with the law but are precluded from proving this in court by the government’s invocation of the state secrets privilege. Under the bill, companies would be permitted to present their evidence for review by a federal district court under appropriate procedures to protect classified information.

Taken together, these provisions would enhance both our security and our liberty, giving the intelligence community the tools it needs to protect America while preserving the freedoms we cherish.

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