House Democrats pushed their government eavesdropping bill through two committees Wednesday with only minor changes, setting the stage for a confrontation with the Bush administration.
President Bush said that he will not sign the bill if it does not give retroactive immunity to U.S. telecommunications companies that helped conduct electronic surveillance without court orders.
Bush said the bill, which envisions a greater role for a secret court in overseeing U.S. surveillance of overseas communications, would “take us backward” in efforts to thwart terrorism.
The measure advanced by the House Judiciary and Intelligence committees left out the immunity provision Bush wants. Democrats also voted down Republican attempts to tailor the legislation more to the administration’s liking.
The committees even strengthened the bill slightly by establishing a new threshold for when the government has to seek a court order to listen in on American communications with foreigners. They also gave the secret court set up 30 years ago to oversee government surveillance a little more power to monitor intelligence agencies’ compliance with court orders.
Michigan Rep. Pete Hoekstra, the senior Republican on the Intelligence panel, said Republicans had been left entirely out of the creation of the bill. It was delivered to them on Monday, a federal holiday when few were working.
“This is a deeply flawed bill,” Hoekstra told reporters after the committees acted.
He and other GOP lawmakers said the bill gives too much power to the Foreign Intelligence Surveillance Court to oversee intelligence activities and will bog down intelligence agencies with administrative burdens. They charged that the measure extends constitutional protection to phone calls by terrorists overseas, takes rights away from telecommunications companies, and prohibits legitimate surveillance of other countries.
“We spy. America steals secrets from people who are not friendly to us,” said Rep. Heather Wilson, R-N.M.
Bush and the House Republicans want legislation that extends and strengthens a temporary eavesdropping bill passed in August. Democrats, however, want to roll back some of the powers it granted the government to eavesdrop without warrants on suspected foreign terrorists.
Under pressure to close what Bush officials called a dangerous gap in intelligence collection, Congress hastily passed a temporary surveillance oversight bill before leaving Washington for a summer break. Democratic leaders in Congress set the law to expire in six months so that it could be fine-tuned.
Civil liberties groups say the current law gives too much latitude to the administration and provides too little protection against government spying on Americans without oversight.
The 1978 Foreign Intelligence Surveillance Act establishes when the government must obtain eavesdropping warrants from a secret intelligence court.
The surveillance law passed this summer allows the government to eavesdrop without a court order on communications conducted by a person reasonably believed to be outside the U.S., even when the communications flow through the U.S. communications network — or if an American is on one end of the conversation — so long as that person is not the intended focus or target of the surveillance. The Bush administration said this was necessary because technological advances in communications had put U.S. officials at a disadvantage.
The original law generally prohibited surveillance inside the U.S. unless a court first approved it.
Seeking to increase the pressure on the Democratic-controlled Congress, Bush said the update has already been effective, with intelligence professionals able “to gather critical information that would have been missed without this authority.”
“Keeping this authority is critical to keeping America safe,” he said.
The temporary law requires court review, but only four months after the fact and only involving the administration’s general process of collecting the intelligence, not individual cases. Until then, the director of national intelligence and the attorney general would oversee and approve the process of targeting foreign terrorists.
The Democratic bill would allow the government to eavesdrop on a foreign target or group of targets located outside the United States. However, if there is a possibility the targets will be communicating with Americans, the government must get an “umbrella” or “blanket” court order to conduct surveillance for up to one year. In an emergency, the government could begin surveillance without a blanket order as long as it applies for court approval within seven days, and it is approved within 45 days.
A top Democratic leader opened the door to allowing an immunity provision. But House Majority Leader Steny Hoyer, D-Md., said the Bush administration must first detail what the companies did that requires the immunity. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws.