Tuesday, March 4, 2008

Wiretap Compromise in Works

Wiretap Compromise in Works

By Ellen Nakashima and Paul Kane

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FISA update may hinge on two separate votes.

House and Senate Democratic leaders are headed into talks today that they say could lead to a breakthrough on legislation to revamp domestic surveillance powers and grant phone companies some form of immunity for their role in the administration's warrantless wiretapping program after the Sept. 11, 2001, terrorist attacks.

A senior House Democratic aide said a bill could be sent to President Bush as early as next week. But significant issues remain, including those surrounding immunity, said Wyndee R. Parker, general counsel of the House Permanent Select Committee on Intelligence.

Parker, who said she hopes the House can take up the compromise legislation as early as this week, said a resolution has been delayed partly by the need for all members of the House Judiciary Committee to gain access to the letters and other relevant documents sent to the phone companies by the administration requesting their assistance.

The House Democratic leadership demanded such access before they would contemplate immunity, and the administration granted full access last week. Parker spoke at a breakfast meeting sponsored by the American Bar Association yesterday.

Kenneth Wainstein, assistant attorney general for national security, said at the same meeting that key issues surrounding the legislation had been hashed out in a "long and tedious" but "healthy" process, aimed at updating the Foreign Intelligence Surveillance Act (FISA).

Aides said House Majority Leader Steny H. Hoyer (D-Md.) has been polling his party's divided caucus the past few days about the immunity issue, with the liberal camp pushing to do nothing and the moderate wing supporting a provision in Senate-passed legislation granting immunity for the telecommunications industry.

Highlighting the party's struggle to heal its internal fractures, today's meetings will involve Democratic staff from the House and Senate Intelligence and Judiciary committees, the House Democratic leadership, and then the House Democratic caucus. The dilemma faced by Democrats is that Republicans and the administration oppose any bill other than the measure passed by the Senate that includes full retroactive immunity for the telecommunications companies.

"This is not amnesty," Wainstein said at the meeting. "This is targeted immunity" for companies who meet requirements specified in the Senate bill that include having received an attorney general's certification that their assistance was determined to be lawful.

A group of several dozen moderate to conservative House Democrats, known as "Blue Dogs," has pushed Hoyer and House Speaker Nancy Pelosi (D-Calif.) to approve the Senate bill. Some aides on Capitol Hill were discussing the potential for the House passing the Senate version but breaking it into two votes: one on the portion of the bill that deals with revising FISA provisions and a second on the immunity measure.

This procedural move would allow many Democrats to vote against immunity but still make its approval all but certain since almost every Republican and some centrist Democrats would vote in favor.

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Privacy advocates have raised concerns that the Senate bill contains a provision that would allow the attorney general to erect a new barrier to future privacy cases brought under the nation's foreign intelligence surveillance law.

Contrary to current practice, the Senate bill would halt such lawsuits if the attorney general certified that the assistance provided by the telecom carrier was lawful. The only check on that certification would be a court review as to whether the attorney general "abused" his discretion, which experts said yesterday was the lowest possible standard of judicial review.

"This provision is yet another example of the executive branch 'just trust us' mentality when it comes to intelligence matters," said Kevin Bankston, senior staff attorney at the Electronic Frontier Foundation.

A key congressional aide said that the issue is one that must be reviewed carefully, and a balance must be struck between appropriate court review and avoiding "protracted litigation."

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