by Katie Fretland
Sweeping changes to the domestic spying bill, which encountered months of debate over national security versus privacy, won the approval of the Senate on Wednesday. The bill grants retroactive immunity to telecommunications companies for participation in the government's eavesdropping on Americans without warrants following the Sept. 11 attacks.
Changes to the Foreign Intelligence Surveillance Act dictate how the government can spy on suspected terrorists and foreign agents. Wednesday's overhaul, which passed 69 to 28, represents the broadest change to the bill since it was enacted 30 years ago. The measure now goes to Bush who says he will sign it.
Sen. Barack Obama, under fire over his decision to support the bill he once threatened to filibuster, cast his vote in favor of the bill after three attempts to amend the bill failed on the Senate floor. His opponent, Sen. John McCain, whose campaign attacked Obama over the reversal, spent the day campaigning in Pennsylvania and Ohio. He did not vote.
The main dispute over the bill was whether to grant immunity to telecommunications companies that cooperated in the Bush administration's warrantless wiretapping program. Some 40 lawsuits have been filed seeking billions of dollars from companies like Sprint Nextel Corp. and AT&T Inc.
Bush directed telecom companies to tap phone and computer lines for about six years following Sept. 11, 2001, without the permission of a secret court that governs surveillance. The court was created to approve wiretaps placed domestically for intelligence gathering.
The revised measure allows the court to approve wiretaps before the government can eavesdrop on Americans overseas. The bill also gives the government powers to intercept communications of foreign groups with broad intercept orders.
Bush praised the passage of the bill, calling it a "vital piece of legislation that will make it easier for this administration and future administrations to protect the American people."
Obama voiced opposition to the bill, but recently pledged to support it, although it is "far from perfect" and fails to resolve concerns over abuses of executive power, he said. Thousands of his supporters took to the Web to criticize Obama's support for the bill.
The provision to allow retroactive immunity weakens the act by failing to demand accountability for past abuses, Obama said. However, the compromise bill allows the FISA court to act as a monitor to prevent abuses of the civil liberties of the public, he said. Obama also noted that the Inspectors General report allows for investigations of past misconduct.
"The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe," Obama said. "Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise."
Obama pledged that if he is elected president he would have his attorney general conduct a review of all surveillance programs.
McCain told reporters in Pennsylvania that Obama's change in position was not the first flip flop.
"Senator Obama and I are still in strong disagreement on the issue of immunity for the telecommunications corporations," McCain said.
The American Civil Liberties Union criticized the passage of the bill, saying that the bill rides roughshod over the Constitution by allowing the FISA court to review only procedures for spying instead of individual warrants. The court will make decisions without knowing specifics about who will be wiretapped, the ACLU said.
"The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government's general spying procedures are found insufficient or unconstitutional by the [court]," the organization said in a statement. "The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime."
The vote Wednesday followed hours of debate.
Sen. Jay Rockefeller (D-W.V.) said the bill is critical to the nation's security and would strengthen the ability of the government to conduct surveillance of terrorists. Rockefeller said the bill would also grant new oversights and protections for the civil liberties of Americans, by insuring a review by the FISA court before surveillance is conducted. Sen Kit Bond (R-Mo.) said the bill would not allow surveillance of innocent Americans. Unless a person has al-Qaeda "on speed dial," that person would not be put under surveillance, Bond said.
Sen. Russ Feingold (D-Wis.), Sen. Patrick Leahy (D-Vt.) and Sen. Chris Dodd (D-Conn.) spoke against the provision to allow immunity for the telecom companies.
"...it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public," Feingold said.
"I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation."
Three amendments that would have facilitated lawsuits against the telecom companies failed. An amendment by Dodd to strip immunity for the telecom companies from the bill failed 32 to 66.
An amendment by Sen. Arlen Specter (R-Pa.) to limit retroactive immunity failed 37 to 61. Specter aimed to limit retroactive immunity by placing more power in the federal courts. The bill would have limited immunity to cases in which a federal court ruled that the intelligence activity was constitutional.
Sen. Jeff Bingaman (R. N.M.) proposed an amendment to stay pending cases against certain companies. The bill would allow companies to seek immunity only until 90 days after a final report on the Bush administration's surveillance program is submitted to Congress. It failed 42 to 56.