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“A careful balance between security and freedom”

October 10, 2007 - by Donny Shaw

UPDATE: here is H.R.3773, the RESTORE Act of 2007.

That’s what some Democrats — Jerrold Nadler (D-NY), the chairman of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, in particular — are calling new legislation introduced today by House Democrats to rein in the administrations ability to intercept communications involving Americans without first seeking a warrant. The bill would update the FISA law and undo some of the powers to wiretap Americans without a warrant that Congress handed to the administration when it passed the Protect America Act in August.

The new bill, which is expected to get initial approval from two House committees today, is called the "RESTORE Act (aka the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007). But some, including the American Civil Liberties Union, don’t think that it fully stands up to its acronymic name. “As drafted, the RESTORE Act still allows for the US government to collect phone calls and emails from Americans without an individual warrant,” they said in a press release on Tuesday.

At issue is a provision that allows the Director of National Intelligence and the Attorney General to directly approve, bypassing the standard warrant procedure, the wiretapping of communications between a suspect who is “reasonabley believed” to be a foreigner and an American, so long as “a significant purpose of the acquisition is to obtain foreign intelligence information.” The DNI and Attorney General would be able to get “basket warrants” — also referred to as “umbrella warrants” — that would authorize wiretaps for communications involving designated foreign groups, regardless of whether U.S. citizens are incidentally spied on as well. For example, the administration could create a list of Al Qaeda suspects and acquire a warrant that would allow them to intercept any and all communications involving those on the list for one year, and they would not need a separate warrant to intercept calls by people on the list that involve Americans.

Despite the fact that for many on the left these basket warrants don’t go far enough towards restoring civil liberties, they are the primary restoration that the bill provides. President Bush has repeatedly asked Congress to allow his administration to spy on calls involving Americans and foreigners without even these broad warrants, so for congressional Democrats, who have been easily swayed towards capitulation on matters of national security, this relatively minor and potentially meaningless requirement is slightly bold. But, “slightly” is the key word here. The basket-warrant requirement is strong enough to lose the support of almost all Republicans, but too weak to attract the support from the most liberal of Democrats in the House.

If House Republicans aren’t going to support it, how, one might ask, do Democrats plan on getting President Bush to sign it into law? They’ve got a plan involving a secondary capitulation, and it’s one that is an enormous priority for President Bush.

In the draft version of the bill that is expected to be marked up by House intelligence and judiciary committees today, there is no provision to provide legal immunity to the telecommunications companies that helped the Bush Administration implement its illegal wiretapping program. But, according to the AP, Democrats are ready to put in such a provision if it means that their bill will be signed.

>A top Democratic leader opened the door Tuesday to granting U.S. telecommunications companies retroactive legal immunity for helping the government conduct electronic surveillance without court orders, but said the Bush administration must first detail what those companies did.
>House Majority Leader Steny Hoyer, D-Md., said providing the immunity will likely be the price of getting President Bush to sign into law new legislation extending the government’s surveillance authority. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws. Democrats introduced a draft version of the new law Tuesday – without the immunity language.
>"We have not received documentation as to what in fact was done, for which we’ve been asked to give immunity," Hoyer said.
>In a conference call with reporters, a senior Justice Department official called Hoyer’s offer “encouraging” but would not commit to sharing the data.

It wouldn’t look good for the President if the telecom companies that helped him execute his warrantless wiretapping program were found guilty of violating privacy laws, so he has been pushing hard to secure their immunity. Eric Lichtblau of The New York Times implies another possible motivation of Bush’s for securing immunity. “Telecommunication utilities have been major donors to candidates. AT&T is the second-biggest donor since 1989, contributing $38 million to candidates, including many of the lawmakers active in the eavesdropping debate, according to data from the Center for Responsive Politics,” Lichtblau writes. And if you actually check out the CRP data on telecoms’ campaign contribution trends, you’ll see that all the major companies give significantly more to Republicans than to Democrats.

But while the bill may let telecom companies off the hook, it does have a provision that would help ensure that the DNI, Attorney General and FISA court are held accountable for their actions relating to wiretapping. Under the proposal, the Inspector General of the Department of Justice would be required to conduct quarterly audits of wiretapping activity and report back to Congress, the FISA Court, the DNI and the Attorney General. Included in the reports would be the number of suspects targeted by wiretaps that were later determined to be located in the U.S., the number of Americans that have been subject to wiretaps and the number and nature of reports that were drawn up from collected data. The bill is designed to sunset on December 31, 2009, so Congress would be sure to have a chance to alter FISA policies if they decide to do so after reviewing the audits.

For now, the complete text of the bill is available at TPM. We’ll post the link as soon as it is up on OpenCongress.

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