House panel endorses controversial spy bill

Republicans push through legislation to rewrite wiretapping law, get blasted by civil-liberties groups and Democrats.

Republicans on a key congressional committee on Wednesday approved legislation they described as a necessary rewrite to electronic surveillance law but attacked by Democrats, civil libertarians and technology advocacy groups as flawed and unconstitutional.

In a 20-16 vote mostly along party lines, the U.S. House of Representatives Judiciary Committee backed an amended version of the Electronic Surveillance Modernization Act of 2006, a Republican-sponsored measure introduced in July. Two Republicans and all 14 Democrats present rejected the proposal.

"This legislation is a priority for the president and critical to our national efforts to detect and disrupt acts of terrorism before they occur," said Committee Chairman James Sensenbrenner, who co-sponsored the controversial bill with Rep. Heather Wilson, a New Mexico Republican.

Supporters said the bill's provisions would aid terrorist investigations by relaxing the requirements for warrants to conduct electronic surveillance and addressing modern communications in a "technology neutral" way not foreseen by the 28-year-old Foreign Intelligence Surveillance Act (FISA).

The Bush administration has acknowledged that its controversial National Security Agency terrorist surveillance program was not approved by the FISA court--but argue the president's constitutional powers as commander in chief, among other things, provide ample legal authority.

Meanwhile, civil liberties advocates have accused the administration of intruding into phone calls and e-mails of millions of innocent Americans, and even Attorney General Alberto Gonzales conceded earlier this year that some "ordinary" citizens could be swept up in the quest for rogue targets.

During about two hours of debate leading up to Wednesday's vote, Rep. John Conyers, the top Democrat on the Judiciary Committee, ticked off a number of flaws he perceived in the Republican-backed approach. Those gripes included a lack of limits on presidential power to conduct warrantless surveillance, extending FISA snooping to new categories of individuals and corporations who have no connection to foreign governments or terrorists, and allowing the government to maintain records and "massive databases" on surveilled individuals "in perpetuity."

"We all want to fight terrorism, but we need to fight it in the right way, consistent with our Constitution, and in a manner that serves as a model for the rest of the world," Conyers said in prepared testimony. "This bill does not meet that test."

Joining ongoing protests from advocacy groups like the American Civil Liberties Union and the Electronic Frontier Foundation, which have led many of the efforts to sue government agencies and telecommunications companies accused of illegal spying, a Washington-based technology trade association also served up its opposition to the surveillance bill this week.

"The mere possibility of widespread, secret, and unchecked surveillance of the billions of messages that flow among our customers, especially U.S. citizens, will corrode the fundamental openness and freedom necessary for our communications networks," Ed Black, president of the Computer and Communications Industry Association, wrote in a letter (click for PDF) to the committee on Tuesday. CCIA's members include Google, Yahoo, Microsoft and Red Hat.

"Even if this power is not deliberately misused," Black went on, "the loss of a sense of privacy in personal and confidential business communications will inflict great and long-lasting damage on the dynamic and innovative growth intrinsic to the high-technology sector."

Some Judiciary Committee members offered amendments on Wednesday designed to quell constitutional concerns raised by opponents. In a move supported by both parties, Sensenbrenner proposed an amendment that stripped two portions of the underlying bill that would have allowed warrantless surveillance to continue for up to 60 days after an "armed attack" on the United States and up to 45 days after a "terrorist attack." He said the provisions' language was too vague and needed additional work.

Rep. Dan Lungren, a California Republican, also described a 25-page amendment that he claimed would add additional clarifications and constitutional protections. The proposed changes ultimately were approved, but not before Democrats raised questions about whether they could trust the measure without having studied it in advance and even called for halting the meeting until it could be more thoroughly examined. Efforts by CNET News.com to obtain a copy of the Lungren amendments met with no response.

Those actions represent "a lot of smoke and not a lot of fire," Lisa Graves, the ACLU's senior counsel for legislative strategy. "There's a lot of optics going on, but behind the scenes...I'm sure they've already worked out a deal to make sure the White House gets what it wants at the end of the day."

The same bill was also slated for a vote on Wednesday afternoon at a closed meeting of the House Permanent Select Committee on Intelligence, of which Wilson is a member. Committee representatives were not immediately available to comment on the outcome of those proceedings. But according to the ACLU, a different version of the Republican proposal, which still lacked adequate safeguards by its estimation, was approved by the intelligence panel.

In a move sure to ruffle feathers among civil libertarians, the Judiciary committee also approved along party lines an amendment designed to shield from legal liability any individual or company that complies with surveillance requests from any intelligence program.

The move would effectively "eliminate the 60 or more lawsuits filed because companies complied with government orders," such as the one lodged by the Electronic Frontier Foundation against AT&T, said Rep. Chris Cannon, the amendment's sponsor. Without such protection in place, he said, "an individual or company will be reluctant to cooperate with any government authorized surveillance program, which will severely undercut government's efforts (to prevent terrorist attacks)."

Republicans shot down a number of amendments offered primarily by Democrats, including more than one proposal designed to establish FISA as the exclusive means by which the president can sign off on electronic surveillance programs.

The House Judiciary Committee vote arrived one week after its counterpart in the Senate narrowly approved three bills relating to the Foreign Intelligence Surveillance Act, cuing them up for a vote soon on the Senate floor.

The most controversial measure of the three, offered by Committee Chairman Arlen Specter with the White House's blessing, has drawn attacks from Democrats and civil liberties groups who claim it would erode the 1978 spy law's checks on executive power and violate Fourth Amendment privacy protections for Americans by authorizing unchecked intrusions on Internet and telephone communications.

The bill's supporters, for their part, say it signals that the president does not have a "blank check" to do warrantless surveillance and that he has volunteered to submit the National Security Agency's terrorist surveillance program for constitutional review if the bill passes, even though it doesn't explicitly require such a move.

Sensenbrenner said he expected the House version to go to a floor vote as soon as next week. It was not immediately clear when the Senate would take up its proposals.

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