Congress may OK 'compromise' bill to derail spying lawsuits

The U.S. Congress may soon vote on a new "compromise" spy law that would still likely derail pending suits against AT&T and other companies accused of opening their networks to the government in violation of wiretap law.

Democratic leaders, facing intense election year pressure from Republicans and more conservative "Blue Dog" members of their own party, had said they hoped to reach an agreement on a contentious rewrite of a 1978 electronic-surveillance law known as the Foreign Intelligence Surveillance Act, or FISA, before their Memorial Day recess.

That self-imposed deadline passed without action. The major sticking point has been whether to grant so-called retroactive legal immunity to telephone companies facing lawsuits over allegations that they illegally assisted the National Security Agency, violating their customers' privacy.

The latest proposal, which Republicans are touting as a "compromise," would shift that debate behind closed doors, allowing a secret court to dismiss lawsuits related to the president's warrantless-wiretapping program--that is, during the period after the Sept. 11 attacks and before then-Attorney General Alberto Gonzales agreed to submit the so-called Terrorist Surveillance Program to the same secret court for review.

In order to dismiss the suits, the secret Foreign Intelligence Surveillance Court, whose 11 judges are appointed by the U.S. Supreme Court's chief justice, would be required only to consider whether the attorney general's "certification" requesting surveillance assistance from a communications company was terrorism-related and legally authorized by the president. That's according to a draft proposal and summary provided by Sen. Kit Bond (R-Mo.)'s office and discussed at a press conference last week.

"It's clear that they're giving (the provisions) nice titles, and Bond is suggesting that he's made a lot of concessions, but ultimately, the way the provisions work out is, the administration gets what it wants," Caroline Fredrickson, director of the ACLU's Washington office, said in a phone interview. "The immunity provision is garbage."

Critics--including the American Civil Liberties Union and the Electronic Frontier Foundation, which have filed legal challenges against the surveillance activities--say that would amount to a rubber stamp of sorts on any past warrantless eavesdropping.

Aides to Democratic leaders told CNET News.com that their bosses are reviewing the proposal and haven't yet taken a position on it. But civil-liberties groups say they fear that, thanks to political pressure, they will ultimately accept much what they call a "sham" compromise.

The White House and Republicans, of course, have preferred all along to give more blanket "retroactive" immunity to telephone companies. Earlier this year, they appeared poised to get their way, when the U.S. Senate voted to approve a bill (PDF) that likely would have wiped out scores of pending legal challenges against the likes of AT&T and Verizon Communications.

But the House of Representatives ultimately objected to that approach and refused to call up that bill for a vote, opting instead to narrowly approve a version (PDF) lacking so-called "retroactive immunity" for phone and Internet companies accused of wrongdoing.

The "compromise" this time around appears to involve a couple of things: Outside parties challenging the government's warrantless surveillance would be allowed to submit briefs to the secret court. There would also be an arguably lower legal standard than in the already-approved Senate bill for when court would be allowed to review the attorney general's "certifications," though civil-liberties groups said it's unclear exactly how that will work in reality.

Under the revised proposal, the secret court would also have the option of sending a legal challenge back to a regular federal court, if it--and a subsequent secret appeals court--determines the case against a phone company should not be dismissed.

There's no guarantee, however, that such a move, if it even occurred, would not result in the federal court simply throwing out the case itself. After all, appeals courts have already dismissed similar suits on the grounds that state secrets would be revealed.

And throughout it all, a good amount of secrecy would be required under the revised bill. For instance, the secret court would be prohibited from disclosing how or why it reached a particular conclusion about whether to dismiss a case, if the attorney general declared that such revelations would harm "national security."

What remains unclear is what happens next. House Majority Leader Steny Hoyer said he now hopes to call up a compromise bill for a vote sometime before Congress departs for its August recess. Hoyer has also said "differences" remain to be worked out among their versions, but it wasn't immediately clear what those differences are, as a Hoyer representative didn't immediately respond to requests for elaboration.

Democrats, meanwhile, insisted again that intelligence agents aren't hamstrung by the lack of legal changes so far.

"Our intelligence community has the tools it needs to keep America safe, and we are absolutely committed to ensuring that this remains the case," Hoyer said. "The Director of National Intelligence has not informed us of any degradation in intelligence collection, and we continue to call on him to inform Congress if this changes."

[The_Decider]

If this happens then the final nail in the experiment in freedom, called America, is over.

"And throughout it all, a good amount of secrecy would be required under the revised bill. For instance, the secret court would be prohibited from disclosing how or why it reached a particular conclusion about whether to dismiss a case if the attorney general declared that such revelations would harm "national security.""

Is there anything more Orwellian and unamerican then this? Welcome to the new Soviet Union comrades.

[iamacat]

Well, what do you propose? A regular court where the government/telecom companies have to either present state secrets for public record or lose the case because they can't present all the evidence in their defense?

I will have to see the bill to find out who will be the judges and juries in this secret court and weather members of congress will be able to review the proceedings if they have concerns. But I don't see how a government is totalitarian just because it keeps some security-sensitive information secret. In fact, I see a step forward in allowing even state secrets to be reviewed in a regular and an appellate court.

[The_Decider]

Secret courts are the exact opposite of the principles of the US. The telcos broke the law and violated the constitution when they bowed to our wanna-be dictator. They, along with Bush, Cheney, and the rest of his mad crew should be in jail for spying on Americans without a warrant. Their actions are the very definition of totalitarianism. They are saying they are accountable to no one, how is that anything but totalitarianism? Wake up!

[Zero187]

I really hope our world isn't headed in this direction. The government didn't create life and therefore shouldn't have this much control over it. It's bad enough that certain natural substances are illegal (it should be OUR choice what we put in OUR bodies, the government didn't create these substances NOR did they create us), but now with all this wiretapping and privacy exploitation, the government has done exactly the opposite of what it is supposed to be doing - creating a safe environment for people to act freely to a degree. Well, now that degree is becoming smaller and smaller with all this new powerful technology. Boy I wish I grew up in the 50's where most people could really trust each other and leave their doors unlocked. (PS: The_Decider, I have been having that double-post issue as well, I think it's a bug on the site)

[Dalkorian]

I'm starting to think we don't need any trials against the telcos. Why? They have already proven themselves guilty by their actions. Our Constitution has been violated by the very highest person sworn to protect it's virtue. Impeachment is justice, "retroactive immunity" is a perversion of everything America stands for. Let's see what we get here at the end of fuhrer bushit's rule.

[The_Decider]

Exactly! Why do they need immunity if they did nothing wrong? If they did nothing wrong and they think their actions are justified, they should be proud and stand up for it.

[Earl Benzar]

There should be no compromise. If these people broke the law, they should face the consequences of their actions. This really is becoming a corrupt culture, and Washington is leading the way.

[skekoa]

The law is what the government says it is. How else will we feel safe and protected? Isn't that what the Constitution is all about? I'm just grateful that we stopped the spread of Communism around the world and the evil walls they build. God bless America! Now shut up and don't ask any more questions!!

[benjaminstraight]

More debates about what many consider a fundamental right.