Today’s Must ReadIf you liked the Protect America Act — President Bush’s sweeping revision to the Foreign Intelligence Surveillance Act signed into law in August — you’re going to love the soon-to-be-unveiled surveillance bill from the Senate intelligence committee. President Bush and Admiral Mike McConnell do, at least. A day after the White House made available to the committee “millions” of pages of material documenting how the telecommunications industry complied with warrantless requests for Americans’ international communications after 9/11, the committee wrote into its bill a provision granting the industry retroactive immunity from customer lawsuits that the White House has long desired.
It’s unclear what else the bill will contain. The House Democratic surveillance measure that Republicans blocked yesterday allowed for non-individualized court orders approving surveillance of targets “reasonably believed” to be outside the U.S. and possessing “foreign intelligence information,” a provision that has divided civil libertarians. That measure is too restrictive to the Bush administration, which wants all foreign-directed surveillance outside the purview of the FISA Court, even in cases where foreigners call into the United States. Until the Senate bill is released today, it won’t be clear whether there’s a prior-review role for the court in foreign-directed surveillance.
But on the most contentious aspect of the debate — retroactive legal immunity for telecommunications companies cooperating with the Bush administration — the Senate has apparently justified the ACLU’s worst fears. Here’s what The Washington Post, citing congressional sources, reports about how the immunity will work:
The draft Senate bill has the support of the intelligence committee’s chairman, John D. Rockefeller IV (D-W.Va.), and Bush’s director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.
Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.
The first question this raises: This “legal directive” is surely part of the pile of documents the Senate intelligence committee had access to about the legal foundations for the warrantless surveillance program. But its legal validity is unknown — indeed, Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel, called the legal basis for the program up until 2004 the “biggest mess” he’d ever encountered. Will the Court’s “secret” review of telecom compliance with the directive include an assessment of the soundness of that directive? We’ll see what the text of the bill says.
Second: McConnell has indicated his support to Congressional surveillance moves before, only to have Bush reverse him. Since the Senate bill apparently goes further than the Protect America Act in terms of telecom immunity, it’s an open question whether the president thinks he can ultimately run the table on a full PAA-plus measure. McConnell’s support may not be so ironclad if Bush thinks an even more administration-friendly measure can be introduced or added to the bill in a subsequent amendment.
