Democrats’ Bill to Amend Wiretap Powers Delayed

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(APN) ATLANTA — Congressional Republicans have now delayed a bill proposed by the Democratic leadership in the US House Committees on the Judiciary and Intelligence to amend the Foreign Intelligence Surveillance Act (FISA), an act which governs domestic warrantless wiretapping, according to the Associated Press.

The Democrats’ latest proposal is called The Responsible Surveillance that is Overseen, Reviewed, and Effective (RESTORE) Act, HR 3773. This new bill would restore some checks and balances and judicial oversight missing under the Protect America Act (PAA), an interim measure passed by US Congress shortly before its August recess.

The PAA had been introduced by US Sen. Mitch McConnell (R-KY). It passed the US Senate 60-28 on August 03, 2007, and the US House on August 04, 2007, 227-183.

However, while the RESTORE Act bill was seen as an improvement over the PAA, the bill still was seen as problematic by some civil liberties advocates, including the American Civil Liberties Union (ACLU).

The Congressional Progressive Caucus (CPC) had released a list of eight reforms they felt should be a part of any FISA update, many of which ended up in the RESTORE Act final proposal.

“This bill shows it is possible to protect civil liberties and fight terrorism at the same time,” US Rep. John Conyers (D-MI), Chairman of the House Judiciary Committee and bill co-sponsor, said.

“This legislation provides the intelligence community with strong tools to track down terrorists, weapons proliferators, and spies,” US Rep. Silvestre Reyes (D-TX), Chairman of the House Intelligence Committee and another bill co-sponsor, said. “But it also protects the civil liberties of Americans and requires stronger oversight by Congress.”

The RESTORE Act would strengthen the role of the Foreign Intelligence Surveillance Court (FISC) and require warrants for domestic-to-domestic communications or in cases when the target of surveillance is in the United States.

The Court would not require warrants for foreign to foreign communications but would in cases of foreign to domestic communications. In this instance, the court would issue what’s called a “basket warrant” that would apply to a certain group – for example a list of al-Qaeda suspects calling the United States – for a year.

The Attorney General or Director of National Intelligence could then authorize wiretaps on those targets with the proviso the FISC would review those procedures and make sure any non-suspect Americans were removed from the surveillance.

The government would have to prove their targets were not Americans or U.S. entities and that the goal of the surveillance is foreign intelligence collection.

The ACLU has criticized the RESTORE Act because it believes the law “should require individual court orders every time an American’s communications are intercepted,” the AP reported.

Director of National Intelligence Mike McConnell testified before Congress last month and requested clarification on foreign to foreign communications and asked that the basket warrant provision be included in any new proposal, according to Raw Story.

Under the PAA, the US government had free reign to conduct warrantless surveillance and intercept communications involving Americans as long as it involved a target “reasonably believed” to be outside the United States.

The PAA also took away much oversight from FISC and contained ambiguous language that appeared to authorize warrantless searches inside the United States.

The new proposal strictly forbids these kinds of searches, including any physical searches of American homes, offices, computers, or medical records.

“Congress’s hurried consideration of the Protect America Act was legislating at its worst,” US Sen. Russ Feingold (D-WI) said in a statement. “Congress must fix the fundamental flaws of that legislation – the utter failure to protect the privacy of Americans at home and abroad, and the complete lack of meaningful judicial, congressional and administrative oversight.”

McConnell told Congress he had no problem with FISC reviews of targeting and minimization procedures or with quarterly audits of the wiretapping program that would determine the scope of American communications caught up by this program, all of which are included in the new proposal.

Another CPC reform called for no retroactive immunity for telecommunications companies or anyone else who helped the National Security Agency spy on innocent Americans illegally.

Indeed, the new proposal does not include immunity for these parties, something the Bush Administration had requested be included in any FISA update proposal.

Civil liberties and privacy rights proponents lobbied Democratic lawmakers hard to get no retroactive immunity and other provisions into the bill.

US House Majority Leader Steny Hoyer (D-MD) did not rule out adding an immunity provision but said Democrats would not support it if the Bush Administration continues to withhold key documents related to the Terrorist Surveillance Program, according to The Hill.

Congress has pursued these documents for over a year with no results.

The US House Judiciary Committee had passed the RESTORE Act on October 10, 2007. It was referred the Intelligence Committee where it passed on October 12, 2007. Speaker Nancy Pelosi (D-CA) also issued remarks obtained by Atlanta Progressive News in support of the bill.

“The only legislation that should come to the floor in this Congress is legislation that would limit the powers of this rogue presidency,” US Rep. Dennis Kucinich (D-OH), US Presidential candidate for 2008, and member of the CPC said.

In 2005, the New York Times revealed President Bush authorized domestic wiretapping in violation of the FISA Act.

About the author:

Jonathan Springston is a Senior Staff Writer for The Atlanta Progressive News and may be reached at jonathan@atlantaprogressivenews.com

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