Surveillance Bills up for Votes Today

Smell that in the air? It’s the bouquet of communications wafting from sender to recipient outside of a wire. E-mail. Skype. That one with the hint of oak? VOIP.

Today’s a huge day for the future of the U.S.’s surveillance laws. The Senate Judiciary Committee marks up the intelligence committee’s surveillance bill — which mostly has the support of the White House — while the House reintroduces the Restore Act. Both bills attempt, to varying degrees, to roll back or amend the Bush administration’s Protect America Act. That law, enacted in August, largely removed the FISA Court from government surveillance of foreign-to-domestic communication.

In the Senate, Rep. Patrick Leahy (D-VT) will attempt to enhance the minimization provisions of the so-called FISA Amendments Act — which protect the anonymity of U.S. persons swept up in a surveillance net — and clarify that any surveillance in the U.S. outside of FISA is illegal. Those two changes don’t impact the bill’s major provisions: 1) removing the FISA Court from the process or 2) granting retroactive legal immunity to telecommunications companies for participation in the Bush administration’s warrantless surveillance program. Yet the White House still opposes them. New Attorney General Michael Mukasey urged President Bush to veto the bill if Leahy’s changes are enacted.

In other words, the White House is keeping to a maximalist strategy on the surveillance front, opposing anything that deviates substantively from its bill. Not surprisingly, civil libertarians are standing their ground in response. Yesterday, the Center for National Security Studies sent a letter to the judiciary committee opposing the Senate intelligence committee’s bill as it is now:

The [FISA Amendments Act] authorizes much broader warrantless surveillance authority than is justified by the national security concerns. The administration has identified two concerns: (1) that changes in technology have meant that foreign to foreign communications being intercepted in the U.S. have become subject to FISA requirements and (2) that it is not always possible to know where the recipient or sender of a communication is located, especially on e-mail. They also claim that NSA surveillance is key to preventing future terrorist attacks. However, the scope of the FAA is much broader than is necessary to address these concerns. It authorizes warrantless surveillance of international communications by Americans even when it is known that the communications are with Americans in the U.S. And it is not limited to surveillance to protect against terrorist attacks, but authorizes warrantless surveillance of Americans’ international communications in an extremely broad range of circumstances, whenever gathering “foreign intelligence information” – defined very broadly – is the objective.

The CNSS split with the ACLU over the House’s Restore Act last month, but on the FAA, they’re on the same page.

In the House, legislative chicanery stopped the Restore Act from moving forward last month. But the House is back in the saddle today. The administration isn’t too fond of the bill, as it has some role for the FISA Court at the beginning of the surveillance process, and it doesn’t include telecom immunity. We’ll see whether the House GOP is able to stop it from moving forward for the second time.