The Democrats have backed down in their fight with the administration over domestic surveillance.
Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government’s domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources. Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.
The collapse marked the first time since Democrats took control of the chamber that a major bill was withdrawn from consideration before a scheduled vote. It was a victory for President Bush, whose aides lobbied heavily against the Democrats’ bill, and an embarrassment for House Speaker Nancy Pelosi (D-Calif.), who had pushed for the measure’s passage.
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.
Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government’s procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years, Democratic congressional officials said. The Bush administration had sought less stringent oversight by the court and wanted the law to be permanent.
Immunity for the telecoms here is essential. Whatever one’s views on the wisdom or even legality of the federal government conducting domestic surveillance without a warrant, the idea that companies complying with the orders of the people who approve their license in matters of national security would then have to fend off private lawsuits is obviously absurd. If someone should be subject to lawsuits, it’s the policy-makers who ordered the surveillance.
The Democrats win, though, on the important issues of FISA Court review and sunsetting. Both strike me as major improvements in the old policy, although my understanding is that the former has become the de facto policy, anyway, after the initial uproar over the previous practice.
