Dems' Bill Expands Wiretapping Powers, Ignores Immunity for Utilities Firms

Monisha Bansal | Staff Writer | Wednesday, October 10, 2007

Dems' Bill Expands Wiretapping Powers, Ignores Immunity for Utilities Firms

Capitol Hill ( - House Democrats introduced a bill Tuesday to reset the guidelines and oversight of President George W. Bush's terrorist surveillance program. The measure was meant to "fix" the Protect America Act that Congress passed during recess, which expanded the president's authority to conduct electronic surveillance.

The new bill, however, does not address the issue of immunity from prosecution for utility companies that helped the government gather intelligence on suspected terrorists since 9/11. That missing piece will likely prompt a presidential veto should the bill pass Congress, according to some analysts.

Reps. John Conyers (D-Mich.) and Silvestre Reyes (D-Texas) introduced the Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007 (RESTORE Act) late Tuesday.

"The RESTORE Act, as currently drafted, crafts a careful balance between security and freedom and it makes clear that FISA is the law of the land," said Rep. Jerrold Nadler (D-N.Y.), the chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

FISA is the acronym for the Foreign Intelligence Surveillance Act, passed in 1978, which sets the rules for federal gathering of foreign intelligence information. (FISA was amended in 2001 under the USA PATRIOT Act to deal with threats from global terrorist operations.)

"Chairmen Conyers and Reyes have written a bill that restores many of the freedoms that were undermined by the White House's bill passed this August," said Nadler. "If President Bush is serious about protecting our nation and preserving the Constitution, he will support the Conyers-Reyes bill."

But Brian Darling, director of Senate relations at the conservative Heritage Foundation, told Cybercast News Service that he expects "the White House will threaten to veto this."

"Some elements are problematic for anti-terrorism," he said, particularly the lack of a provision that would grant retroactive immunity for telecommunications companies that provided information to the government and may have done so illegally.

"It should be retroactive," said Darling. "These companies are getting sued because they were trying to be helpful ... to hunt down people who are abusing our telecommunications system to carry out acts in the United States."

House Minority Leader John Boehner (R-Ohio) called the lack of retroactive immunity "a significant step backward." He urged the House to make the Protect America Act permanent.

"Just as we have been all year long, Republicans are prepared to close the terrorist loophole permanently, and we invite our Democratic colleagues to reconsider the direction of their legislation and join us in that effort," he said in a statement.

"However, if the Democrats re-open the critical intelligence gap we closed over the summer, Republicans will fight and win the same battle we've already fought and won on behalf of the American people," Boehner added.

In congressional testimony, Director of National Intelligence Mike McConnell stressed the need for the provision to protect private companies.

"Those who assist the government to keep the country safe should be protected from liability," he said. "This includes those who are alleged to have assisted the government after September 11, 2001.

"It is important to keep in mind that, in certain situations, the intelligence community needs the assistance of the private sector to protect the nation," McConnell said.

"It is critical that we provide protection to the private sector so that they can assist the intelligence community protect our national security, while adhering to their own corporate fiduciary duties," he added.

The Senate is working on its own version of the bill, which the New York Times reports may be closer to what the administration wants and may include the provision for the private sector.

"I think that is a bad idea," Tim Lee, an adjunct scholar at the libertarian Cato Institute told Cybercast News Service . "The law is very specific ... on what the process required is."

Lee noted that telecommunications companies have an "army of lawyers who know what those steps are."

He added that any law that allows someone to break a law Congress has previously enacted is "inappropriate and unnecessary."

"If Congress grants retroactive immunity there is no reason for these companies to follow laws because if they break them, they know they can run to Congress to change the law," he said.

But P.J. Crowley, director of Homeland Security at the liberal Center for American Progress, said, "Assuming that the telecom companies can show that they were providing data to the government in response to what they considered a legal request, I believe they should receive retroactive immunity."

"But before granting it, it is reasonable for Congress to understand the full context of what it is being asked to grant," he told Cybercast News Service . "For that, the White House and the companies should provide appropriate documentation."

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