Spy bill passes: Xmas at White House; chaos at myobama | St. Louis Public Radio

Spy bill passes: Xmas at White House; chaos at myobama

Jul 8, 2008

This article first appeared in the St. Louis Beacon: July 8, 2008 - A bill to amend the Foreign Intelligence Surveillance Act - engineered by Bond and House Minority Whip Roy Blunt, R-Mo. - has tied Sen. Barack Obama and his social networking site into knots. Obama's decision to back the bill after having said he would filibuster an earlier version, has outraged many of his most committed supporters. The largest group on Obama's social networking site, my.barackobama.com is the opponent of the bill, who are appealing to their candidate to reverse himself again.

Obama maintains that the new bill is better than the one he threatened to filibuster although he acknowledges it is "far from perfect." He says he still opposes the provision that gives telecommunications companies immunity for participating in President George W. Bush's warrantless wiretapping program after 9/11. But he says the bill has an "exclusivity" provision that makes it clear that the Foreign Intelligence Surveillance Court - not the president - is the final authority on wiretaps. The bill also provides for an Inspector Generals' report on possible past abuses of the program. Obama thinks that report could be meaningful. Finally, the senator says the wiretapping program is important to protecting Americans from another terrorist attack.

The American Civil Liberties Union isn't buying Obama's rationale, calling the "compromise" worked out between Bond, Blunt and House Majority Leader Steny Hoyer, D-Md. as "Christmas" for the White House. The Politico website last month described the ins and outs of the deal between Hoyer and his friend Blunt.

The ACLU maintains that the bill is an unconstitutional violation of the Fourth Amendment's protections against unreasonable searches and seizures. In its letter to senators, the ACLU said that the bill violates the amendment's requirement that a warrant describe "the place to be searched, and the persons or things to be seized."   The bill specifically says the government is "not required to identify the specific facilities, places, premises, or property" where the surveillance is conducted.

Most of the left-leaning blogosphere agrees with the ACLU, judging from the postings on Obama's web site and reaction in The Huffington Post . The New York Times also editorialized against the bill this week. 

But the compromise bill received significant support in an oped article in The New York Times this week by Morton H. Halperin. Halperin's phone was tapped during the Nixon administration when he served on the National Security Council. Since then he was become a strong advocate of checks on government surveillance powers. Two years ago, he called the Bush administration's warrantless wiretapping program a more serious threat to civil liberties than Nixon's abuses.  But today, he sees the compromise as the best chance for reining in presidential power. He too considers the provision for an Inspectors Generals' report on abuses to be an important part of the bill.

The House already has passed the compromise bill 293-129. The only two representatives from Missouri or the St. Louis area voting no were St. Louis Democratic Reps. Russ Carnahan and William Lacy Clay.

Supporters of the bill argue that it protects Americans from being "targeted" by foreign intelligence surveillance efforts. But the ACLU says that the provision barring Americans from being targeted is virtually meaningless. Although the "targets" of surveillance must be overseas, innocent Americans engaging in conversations or email correspondence with targets will have them swept up in the process. 

The ACLU maintains that this permits "the government to conduct mass, untargeted surveillance of all communications coming into the out of the United States, without any individualized review, and without any finding of wrongdoing."

Civil libertarians also complain that the Foreign Intelligence Surveillance Court will only test whether the surveillance program is operating consistent with the bill's guidelines. Instead the court should be looking individually at each request for a warrant, they say, because that is the kind of particularity required by the Constitution.

Supporters of the bill argue that the immunity for telecommunications companies is justified because private firms should be able to rely on the government's assurance that it was asking the firms to take steps within the law. If the companies can be sued, then they will be slow to cooperate in the future, they argue.

In response, critics say that immunity eliminates accountability.  Sen. Arlen Specter, R-Pa., will propose to substitute the government for the phone companies as defendants in current lawsuits. But that proposal is expected to fail.

Last week, a federal judge in San Francisco appeared to reject the Bush administration's view that the president has inherent power as commander in chief to order national security wiretaps and to claim the state secret privilege not to disclose details of the program. 

Chief Judge Vaughn Walker concluded that the Foreign Intelligence Surveillance Act of 1978 was meant by Congress to be the sole authority for foreign intelligence wiretaps.  He noted that the law had been enacted after the Church Committee had found abuses in foreign intelligence wiretaps in the Nixon administration. 

Judge Walker left open a door for the telecommunications suits to go forward.  That door would be shut if the Senate passes the new FISA amendments when it takes up the matter on Wednesday.