A top Democratic leader opened the door Tuesday to granting U.S. telecommunications companies retroactive legal immunity for helping the government conduct electronic surveillance without court orders, but said the Bush administration must first detail what those companies did.
House Majority Leader Steny Hoyer, D-Md., said providing the immunity will likely be the price of getting President Bush to sign into law new legislation extending the government's surveillance authority. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws. Democrats introduced a draft version of the new law Tuesday — without the immunity language.
"We have not received documentation as to what in fact was done, for which we've been asked to give immunity," Hoyer said.
In a conference call with reporters, a senior Justice Department official called Hoyer's offer "encouraging" but would not commit to sharing the data. The official spoke only on condition of anonymity while negotiations with Congress continue.
The bill would replace a law enacted in August that is due to expire early next year. That bill was hastily adopted under pressure from the Bush administration, which said changes in technology had resulted in dire gaps in its authority to eavesdrop on terrorists.
Privacy and civil liberties advocates voiced strong concerns, saying the law gave the government far more power to eavesdrop on American communications without court oversight than was initially understood or appropriate.
The bill Democrats unveiled Tuesday would provide greater jurisdiction to a secret court that reviews government requests to carry out certain electronic surveillance, which goes against the administration's wishes.
Currently, U.S. intelligence isn't required to get court permission to eavesdrop on foreign targets communicating with other foreigners, even if those communications flow through U.S. telephone or computer switches.
If Americans are to be targeted for surveillance, however, the secret court must issue a warrant.
The central change the new bill would make is in a third category of surveillance. If the government wants to eavesdrop on a foreign target or group of targets located outside the United States, and there is a possibility they will be communicating with Americans, the government can get an "umbrella" or "blanket" court order for up to one year.
That order would have to explain how the collection of data would be minimized, and how much of the communication could be collected before a regular warrant would be needed to continue listening. That is to prevent the government from "reverse targeting" — that is, wiretapping a foreigner to listen in on their calls to an American, which would otherwise require a court's permission.
The American Civil Liberties Union said the approach is too lax, and that a warrant should be required anytime an American's communications are intercepted or archived for later examination.
In an emergency, the government could begin surveillance without a blanket order as long as it applies for court approval within seven days, under the Democratic bill.
The bill would also require the Justice Department to reveal to Congress the details of all electronic surveillance conducted without court orders since Sept. 11, 2001, including the so-called Terrorist Surveillance Program.
The Terrorist Surveillance Program was a secret eavesdropping program undertaken after the Sept. 11 terrorist attacks without the approval of the FISA court created 30 years ago to monitor such programs.
The Bush administration agreed on Oct. 5 to "assemble" that information by Oct. 22 — after the bill is supposed to be voted on by Congress — but warned that many of the requested documents may be withheld.