The Senate overwhelming voted Tuesday evening to legalize President Bush's warrantless wiretapping program and grant amnesty to the phone companies that helped out with the domestic spying..
The 68 to 29 vote is a major step in radically re-configuring 30 year-old limits on how the nation's spying services operate inside America's borders. The vote also deals a severe blow to civil liberties groups that are suing companies such as AT&T and Verizon for turning over millions of American's phone records to the government, and for helping the government wiretap American's phone and internet communications without a court order.
The bill, which expires in six years, allows the government to install permanent wiretapping outposts in telephone and internet facilities inside the United States without a warrant. However, if those wiretaps are used to target Americans inside or outside of the country, the government would have to get a court order. However, if the target is a foreigner or a foreign corporation, and they call an American or an American calls them, no warrant is required.
Prior to this summer, the intelligence community was forbidden by law from wiretapping phone and internet switches inside the United States, unless they had a particular target in mind and applied for a court order from the secretive Foreign Intelligence Surveillance Court. That court largely rubber stamps such applications -- it approved 2,072 in 2005 and required modifications to only 61 of those.
But government spies say the paperwork is too onerous and that the process is ill-fitted to the wider surveillance the president launched in October 2001.
Before the changes to the Foreign Intelligence Surveillance Act becomes law, however, the Senate must reconcile it with a corresponding bill from the House.
Currently the House bill, known as the Restore Act, more sharply limits the government's authority to spy inside the United States without a warrant. It also does not include a telecom amnesty provision. The House now faces the option of adopting the Senate's version, or horse-trading immunity for more limits on the nation's spooks.
Senator Christopher Dodd (D-Connecticut), one of the bill's most outspoken opponents, had vowed to filibuster the bill, but that opportunity was lost Tuesday with a cloture vote that limited debate on the final bill to just four hours. Dodd's filibuster threat worked to delay passage in December, but on Tuesday, he told reporters it was time for the debate to move to the House.
"You run out of string on these things," Dodd said.
"I'd just as soon have this go to the House floor. I'm going to move this thing along. We are not getting anywhere here," Dodd said, referring to the Democrat-controlled Senate where his amendment to remove immunity needed 20 more votes to pass.
This summer the Congress reacted to extreme statements from the Administration and gave the government wide powers to spy inside America with the passage of the Protect America Act in August.
But that bill was set to expire on Feb.1., and through a short term extension early this month, now expires on Feb. 16.
Republicans and the White House oppose another extension and hope the time crunch will force the House to abandon its bill and simply adopt the Senate version as its own.
Immunity opponents, such as Electronic Frontier Foundation attorney Kevin Bankston, hope the House will stand firm.
"It's time for Speaker Pelosi to draw a line the sand, and make clear to the president that this House of Representatives is never going to pass any bill that includes immunity for lawbreaking telecoms," Bankston said.
The administration says that its surveillance program that targeted Americans and foreigners using facilities and services based in the United States was legal. Administration lawyers cite as justification, both the Authorization to Use Military Force to attack Al Qaeda and the president's war-making powers under the Consitution.
Opponents and even former Justice Department lawyer Jack Goldsmith says those arguments are flimsy, and that the president's wartime powers to wiretap inside the United States are curtailed by the Foreign Intelligence Surveillance Act.
Though the administration initially admitted that the existence of the wiretapping program after a December 2005 story in the New York Times, it has refused to disclose the extent of the operation. Officials have repeatedly denied the program is a "dragnet" that searches communications for keywords.
But statements from administration figures over the past year suggest the program is closer to a vacuum cleaner that sucks in communications and stores them in bulk. Those statements suggest many of the sucked-in communications aren't ever looked at but are available for data-mining and social networking analysis -- and inspection by NSA analysts based on that analysis or other evidence.
Under the bill passed by the Senate today, the government could order companies such as AT&T or Google to turn over all phone calls and emails where one party is reasonably believed to be outside the United States.
The Senate also shot down a proposal from Sen. Dianne Feinstein (D-California) to include strong language affirming that the Foreign Intelligence Surveillance Act was the only way that the government could spy on Americans. That amendment got 57 votes, but due to an agreement by Senate Majority Leader Harry Reid (D-Nevada) that amendment had to get 60 votes to pass.
If the immunity provision is passed into law, the Attorney General can write a letter to the judges overseeing the anti-warrantless wiretapping suit and have them dismissed. Once that happens, expect that the plaintiffs, such as the Electronic Frontier Foundation, will challenge the immunity provision as unconstitutional.
Democrats voting for the bill:
Evan Bayh (D-IN), Tom Carper (D-DE), Robert Casey (D-PA), Kent Conrad (D-ND), Daniel Inouye (D-HI), Mary Landrieu (D-LA) Joe Lieberman (ID-CT), Blanche Lincoln (D-AR), Claire McCaskill (D-MO), Barbara Mikulski (D-MD), Bill Nelson (D-FL), Ben Nelson (D-NE), Mark Pryor (D-AR), Jay Rockefeller (D-WV), Ken Salazar (D-CO), Jim Webb (D-VA), Sheldon Whitehouse (D-RI)
All Republican senators voted for the bill, except for Lindsey Graham (South Carolina) who did not vote.
Democrats voting against the bill:
Daniel Akaka (D-HI), Joe Biden (D-DE), Jeff Bingaman (D-NM), Barbara Boxer (D-CA), Sherrod Brown (D-OH), Robert Byrd (D-WV), Maria Cantwell (D-WA), Ben Cardin (D-MD), Chris Dodd (D-CT), Byron Dorgan (D-ND), Dick Durbin (D-IL), Russ Feingold (D-WI), Dianne Feinstein (D-CA), Tom Harkin (D-IA), Edward Kennedy (D-MA), John Kerry (D-MA), Amy Klobuchar (D-MN), Frank Lautenberg (D-NJ), Pat Leahy (D-VT), Carl Levin (D-MI), Robert Menendez (D-NJ), Patty Murray (D-WA), Jack Reed (D-RI), Harry Reid (D-NV), Bernie Sanders (I-VT), Charles Schumer (D-NY), Debbie Stabenow (D-MI), John Tester (D-MT), Ron Wyden (D-OR)
Neither Sen. Hillary Clinton (D-New York) nor Sen. Barack Obama (D-Illinois) voted on the bill, though Obama did vote earlier in the day to support removing telecom immunity.
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