Senate and Bush Agree On Terms of Spying Bill

Washington Post — Senate and Bush Agree On Terms of Spying Bill:

Senate Democrats and Republicans reached agree­ment with the Bush admin­is­tra­tion yes­ter­day on the terms of new leg­is­la­tion to con­trol the fed­eral government’s domes­tic sur­veil­lance pro­gram, which includes a highly con­tro­ver­sial grant of legal immu­nity to telecom­mu­ni­ca­tions com­pa­nies that have assisted the pro­gram, accord­ing to con­gres­sional sources. Disclosure of the deal fol­lowed a deci­sion by House Democratic lead­ers to pull a com­pet­ing ver­sion of the mea­sure from the floor because they lacked the votes to pre­vail over Republican oppo­nents and GOP par­lia­men­tary maneuvers.

It will include full immu­nity for those com­pa­nies that can demon­strate to a court that they acted pur­suant to a legal direc­tive in help­ing the gov­ern­ment with sur­veil­lance in the United States.

Such a demon­stra­tion, which the bill says could be made in secret, would wipe out a series of pend­ing law­suits alleg­ing vio­la­tions of pri­vacy rights by telecom­mu­ni­ca­tions com­pa­nies that pro­vided tele­phone records, sum­maries of e-mail traf­fic and other infor­ma­tion to the gov­ern­ment after Sept. 11, 2001, with­out receiv­ing court war­rants. Bush had repeat­edly threat­ened to veto any leg­is­la­tion that lacked this provision.

Senate Democrats suc­cess­fully pressed for a require­ment that the Foreign Intelligence Surveillance Court review the government’s pro­ce­dures for decid­ing who is to be the sub­ject of war­rant­less sur­veil­lance. They also insisted that the leg­is­la­tion be renewed in six years, Democratic con­gres­sional offi­cials said.

If the sur­veil­lance was truly uncon­sti­tu­tional, does Congress even pos­sess the power to grant immu­nity? To do so might exceed their lim­ited Constitutional author­ity. However, even if that’s true, this will make cases much, much harder to win.