N.Y. Times (June 20, 2008)

June 20, 2008

Deal Reached in Congress to Rewrite Rules on Wiretapping
By ERIC LICHTBLAU

WASHINGTON — After months of wrangling, Democratic and Republican leaders in Congress struck a deal on Thursday to overhaul the rules on the government’s wiretapping powers and provide what amounts to legal immunity to the phone companies that took part in President Bush’s warrantless eavesdropping program after the Sept. 11 attacks.

The deal, expanding the government’s powers in some key respects, would allow intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct emergency wiretaps without court orders on American targets for a week if it is determined important national security information would be lost otherwise. If approved, as appears likely, it would be the most significant revision of surveillance law in 30 years.

The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determines that they received legitimate requests from the government directing their participation in the warrantless wiretapping operation.

With some AT&T and other telecommunications companies now facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere “formality.”

“The lawsuits will be dismissed,” Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence.

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute. “I think the White House got a better deal than they even they had hoped to get,” said Senator Christopher Bond, the Missouri Republican who led the negotiations.

The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.

While passage seems almost certain in Congress, the plan will nonetheless face opposition from lawmakers on both political wings, with some conservatives asserting that it includes too many checks on government surveillance powers and liberals asserting that it gives legal sanction to a wiretapping program that they contend was illegal in the first place.

Senator Russ Feingold, the Wisconsin Democrat who pushed unsuccessfully for more civil liberties safeguards in the plan, called the deal “a capitulation” by his fellow Democrats.

But Democratic leaders, who squared off against the White House for more than five months over the issue and allowed a temporary surveillance measure to expire in February, called the plan a hard-fought bargain that included needed checks on governmental abuse.

“It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance,” said Representative Steny Hoyer of Maryland, the House Democratic leader who helped draft the plan.

Perhaps the most important concession that Democratic leaders claimed in the proposal was a reaffirmation that the intelligence protocols are the “exclusive” means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. House Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts that “that the law is the exclusive authority and not the whim of the president of the United States,” Ms. Pelosi said.

In the wiretapping program approved by Mr. Bush after the Sept. 11 attacks, the White House asserted that the president had the constitutional authority to act outside the courts in allowing the National Security Agency to target the international communications of Americans with suspected terrorist ties, and that Congress had implicitly authorized that power when it voted to use military force against Al Qaeda.