TOPICS > Politics

Wiretapping Bill Heads to Senate After Telecoms Debate

June 20, 2008 at 6:10 PM EST
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The House approved a wide-ranging terror surveillance overhaul Friday. Caroline Fredrickson of the ACLU and George Terwilliger, a former deputy attorney general for the first President Bush, examine the measure.
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KWAME HOLMAN: After months of wrangling over emergency war funding and domestic surveillance bills, the House moved swiftly in the past 48 hours to break stalemates on both measures.

First up: the spending bill. It came to the floor yesterday after Democratic and Republican leaders worked with the White House to hammer out an agreement just a day earlier.

The bill includes $162 billion for military operations in Iraq and Afghanistan, with no restrictions on the administration’s war policy.

The measure also contains: a 13-week extension of unemployment benefits to millions of workers who have exhausted their state benefits; a new G.I. Bill to help veterans from the Iraq and Afghan wars pay for college; and $2.6 billion to address damage caused by flooding in the Midwest.

The legislation was divided into two amendments, allowing a large number of Democrats — such as California’s Barbara Lee, a staunch opponent of the Iraq war — to vote against the troops funding but for the domestic spending.

REP. BARBARA LEE (D), Calif.: I am opposed to giving this president over $160 billion with no strings attached to continue the disastrous war and occupation in Iraq. This is the biggest blank check ever, ever.

The war and occupation in Iraq has put our country and economy in a hole. And when you are in a hole, you’ve got to stop digging in deeper and climb your way out. You don’t dig yourself deeper in.

KWAME HOLMAN: Others, such as Indiana Republican Mike Pence, were disappointed the domestic spending in the bill was not offset by cuts to other programs.

REP. MIKE PENCE (R), Ind.: When we fund these emergencies, be they at home or abroad, we still need to do so in a fiscally responsible manner. I’ve said before and will say again that we must ensure that a catastrophe of nature does not become a catastrophe of debt for our children and grandchildren.

Compromise essential in new bill

KWAME HOLMAN: But members on both sides of the aisle praised the bill as a model of compromise, and both amendments passed easily. The war funding was approved 268-155; the domestic spending, 416-12.

And that sense of bipartisanship continued today, this time on the eavesdropping legislation. The compromise bill would give legal protections to telecommunications companies that helped the government wiretap Americans' phones and computer lines without warrants after 9/11.

The measure also calls for: a federal district court review of presidential orders, which told the telecommunications companies that the wiretaps were needed to prevent an attack; an investigation by a group of inspectors general into the scope and legality of the program, to be completed in a year; and approval by the Foreign Intelligence Surveillance Court in order to wiretap Americans who are overseas.

Some lawmakers argued the bill does not do enough to protect civil liberties. Texas Democrat Sheila Jackson Lee.

REP. SHEILA JACKSON LEE (D), Texas: Frankly, Madam Speaker, it's very difficult to put lipstick on a pig. And what we have here is the opportunity for the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States without any individual review and without any finding of wrongdoing.

KWAME HOLMAN: Republican Mike Rogers of Michigan responded that such talk was misleading.

REP. MIKE ROGERS (R), Mich.: The due process of the Constitution, the Fourth Amendment, is alive and well and protected in this bill. And any rhetoric to the contrary is simply not true; it's fear-mongering. For any of the U.S. citizens who believe that their phones are going to be unceremoniously and unjudiciously tapped or listened to is simply wrong.

KWAME HOLMAN: The bill did attract a number of Democratic supporters, California's Jane Harman among them.

REP. JANE HARMAN (D), Calif.: Security and liberty are reinforcing values, not a zero-sum game. This bill, though imperfect, protects both.

KWAME HOLMAN: The surveillance legislation was approved 293-129. The Senate is expected to take up both bills next week.

JUDY WOODRUFF: Jeffrey Brown takes it from there.

FISA grants telecom immunity

George Terwilliger
former deputy attorney general
If these cases were to be litigated in an adversarial proceeding, there is a real risk that classified information that is important to maintaining the integrity -- and that is, the effectiveness of these programs -- could be compromised.

JEFFREY BROWN: And we look deeper now at the compromise reached on the domestic surveillance program with Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union; and George Terwilliger, former deputy attorney general for the first President Bush. He's now an attorney in private practice in Washington, D.C.

Welcome to both of you.

Let's start with the immunity for the telecoms; that was the big new thing here. Mr. Terwilliger, why was that necessary to grant them that, a process towards that kind of immunity?

GEORGE TERWILLIGER, former deputy attorney general: Well, I think there are several both policy and legal reasons. The legal justification is that the government came to these companies, requested their assistance, told them that the assistance that was needed was lawful, that there was a legal basis for the activity that they were being asked to support through their companies.

And in our law, when the government does that, whether it's a policeman asking to borrow your car to chase someone down the street or one of the other various means by which the government can request citizen assistance, it is rooted in our law that the person or the entity that provides that kind of assistance should not then be held liable to third parties for rendering it.  And it's really that simple.

JEFFREY BROWN: All right...

GEORGE TERWILLIGER: One additional reason, though, that's important. If these cases were to be litigated in an adversarial proceeding, there is a real risk that classified information that is important to maintaining the integrity -- and that is, the effectiveness of these programs -- could be compromised.

JEFFREY BROWN: OK, well, there are two points, but start with the first one. Why shouldn't they be given immunity, if they were asked to by the president?

CAROLINE FREDRICKSON, American Civil Liberties Union: Well, I think the operative term that Mr. Terwilliger used was "under our law." And the issue here is that the telecoms complied with an illegal request from the White House, that basically the Foreign Intelligence Surveillance Act requires that there be appropriate legal process.

In this case, it was simply a request to them to go and do something that was illegal under the Foreign Intelligence Surveillance Act. Just because the president says something to the telecoms and asks them to do something doesn't make it legal all of a sudden just because he said so.

And they have an option, if they were to go to the court, to actually present their arguments and say that they had the justification from the White House, but the best way that that should be handled is in the court proceeding. It's the only way to bring sunshine into what this government has undertaken with this warrantless wiretapping program.

JEFFREY BROWN: There are about 40-some lawsuits out there now.

CAROLINE FREDRICKSON: Right. I was going to speak to the other issue, as well.

The federal courts have handled classified information in many circumstances, have done that in terrorism prosecutions. They have mechanisms for keeping that information in a secure fashion and have done that in criminal prosecutions of terrorist suspects, and they can certainly do so here.

JEFFREY BROWN: I was going to ask you, of the 40 lawsuits, is there any question at this point that they would be dismissed because of this? Is that what you expect to happen?

GEORGE TERWILLIGER: Well, I haven't examined the merits of each one, but I think that the assumption is, in passing the legislation, that each one of those will, in fact, be resolved by affording immunity here.

CAROLINE FREDRICKSON: I think it's definitive. I mean, President Bush...

JEFFREY BROWN: No question.

CAROLINE FREDRICKSON: ... in his statement today describing the bill says it ensures that they'll be dismissed. I think the Republican leadership has practically gloated about the fact that they got everything that they wanted. It's a pure immunity grant, and there's no real opportunity for these cases to proceed.

Balancing privacy, security

Caroline Fredrickson
American Civil Liberties Union
The Foreign Intelligence Surveillance Act was passed for a very specific purpose, and that was because our government operates with checks and balances. It's a critical part of a democracy.

JEFFREY BROWN: Beyond this immunity question, the debate here always has been between getting the balance right, of protecting privacy versus law enforcement's ability to protect us. You think that the balance here is not right?

CAROLINE FREDRICKSON: No. No. The Foreign Intelligence Surveillance Act was passed for a very specific purpose, and that was because our government operates with checks and balances. It's a critical part of a democracy.

And after Congress discovered and investigated with the Church Committee a variety of improper uses of executive authorities and surveillance by the Nixon administration and prior administrations, they put into place the Foreign Intelligence Surveillance Act because they knew that we needed to have some kind of judicial oversight on these vast spying powers in order to make sure that our basic rights are protected as Americans.

JEFFREY BROWN: And the response? Because there were some new oversights; some oversight is in this bill.

GEORGE TERWILLIGER: Yes. And that is striking the appropriate balance, it seems to me.

I think it's important to understand the reason and justification for striking the balance the way Congress -- on a bipartisan basis, by the way -- has done.

You have to start with an understanding that information that is intelligence about what terrorist groups are planning, what they are doing, how they're organized, how they're communicating is the best defense that is available to the government in order to keep Americans safe from further terrorist attacks.

In order to gather that information, the government needs a lawful means by which to gather intelligence, including through electronic means.

What Congress has done here, in my judgment, is to study this issue and find a way to strike the balance between protecting liberty and civil liberty and privacy, and affording the people -- front-line professionals.

These are not crazy people who are trying to invade the homes and communications of innocent Americans. They're intelligence professionals that are trying to gather the information that will allow them to, in fact, connect the dots the way they were criticized for failing to do so before 9/11.

JEFFREY BROWN: Well, so but very specific in responding, what exactly do you think the government would be able to do that...

CAROLINE FREDRICKSON: Well, first of all, I'd love to quote your former boss, President Reagan, and say, "Trust, but verify." That is the essential factor here. We cannot just turn over these powers.

This is basically very similar to the power that President Bush took to himself after 9/11 when he authorized the NSA warrantless wiretapping program. This is just -- the limited amount of judicial review that exists is simply for procedures that operate, but not for the surveillance itself, not for the who, what, and why of the surveillance.

And without that judicial check, we can trust, but we really have to verify, because history shows that power is abused.

GEORGE TERWILLIGER: Well, if I may, I think -- you know, let me say that I have a great respect for the ACLU, and I think that, as an organization, they are a voice in the policy and legal debates in America that's important.

But what Ms. Fredrickson just said is simply incorrect. There are three levels of review of these activities that take place here. And to suggest that the review that takes place by the judges who are assigned to review these FISA warrants is just a rubber stamp...

CAROLINE FREDRICKSON: ... not reviewing FISA warrants...

GEORGE TERWILLIGER: ... or is meaningless is simply incorrect. In addition to that...

CAROLINE FREDRICKSON: I didn't say it was meaningless. I said it was very limited.

And if you look at the legislation, you'll actually see that what they are reviewing are procedures, the procedures for minimization, the procedures for targeting, but they do not review the actual surveillance requests.

Exclusivity clause central in bill

George Terwilliger
former deputy attorney general
The reason the president had to resort to the authorities that he used before this legislation was because what needed to be done couldn't be done under the old law.

JEFFREY BROWN: Let me ask you both about one overarching thing here, because we only have a minute or so left.

Nancy Pelosi said that the most important thing here is what she called the exclusivity clause, which if I have it right means that this surveillance program would exclusively come under this law and not allow the president, for example, to cite War Powers Act, as he has in the past. How important is that going into the future?

GEORGE TERWILLIGER: It's very important. And it's important to understand the balance that was struck as to that provision itself.

The reason the president had to resort to the authorities that he used before this legislation was because what needed to be done couldn't be done under the old law.

Now the procedures have been changed, and the authorization that's been given has been broadened sufficiently to make it possible to do what the intelligence professionals say we need to do, but to do it under these FISA proceedings.

CAROLINE FREDRICKSON: Does that not reassure you, that exclusivity clause?

CAROLINE FREDRICKSON: No, I think Mr. Terwilliger just made the point that, in fact, the president ignored the pre-existing exclusivity provision that is in FISA.

Congress cannot just put a big underline under that provision or put it in bold letters and say, "Now you're going to abide by it." I think we understand that what we need is court oversight; we need congressional investigations; we need to really understand what this government has done; and we need checks and balances.

JEFFREY BROWN: All right, we'll have to leave it there. It goes to the Senate next. Caroline Fredrickson and George Terwilliger, thanks very much.

CAROLINE FREDRICKSON: Thank you.

GEORGE TERWILLIGER: Thank you.