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Senate Crafts New Rules on Warrantless Spying

The Senate is taking up a complicated bill to overhaul the rules that govern electronic spying on suspected foreign terrorists.

The Foreign Intelligence Surveillance Act was first enacted three decades ago to shield Americans from improper government spying. Now, lawmakers must decide two big issues: First, whether phone companies that provided information to the government without warrants should be given immunity from lawsuits. And second, how to protect Americans abroad from such surveillance.

Less than five months ago, Congress passed a temporary electronic-surveillance bill. Lawmakers put a six-month limit on it that runs out Feb. 1, and because they don't expect to get much done in January, there was a real sense of urgency when the Senate took up the spying legislation Monday.


Russ Feingold (D-WI) warned his colleagues not to be stampeded by the Bush administration, as he said they were in passing the last FISA bill in August.

"That legislation, the so-called Protect America Act, was rushed through this chamber in a climate of fear — fear of terrorist attacks and fear of not appearing sufficiently strong on national security," Feingold said.

Minority leader Mitch McConnell praised Majority leader Harry Reid for bringing a version of the FISA overhaul that passed in the intelligence committee under intense pressure from the White House.

"It contains two main ingredients that are needed for a presidential signature: It will allow intelligence professionals to do their jobs, and it will not allow trial lawyers to sue telecom companies that helped protect the country," McConnell said.

President Bush's supporters portrayed the FISA overhaul as giving intelligence agencies the tools they need to monitor suspected terrorists. But Sheldon Whitehouse (D-RI) said civil libertarians should all be concerned that, under current law, Americans who travel abroad can be spied on without a court order.


"Unless we really believe that when Americans leave our country, we leave our civil rights behind, unless we really believe that this government should have unfettered power to eavesdrop on conversations of families vacationing in Europe, or soldiers serving in Iraq, then the authority to spy on Americans abroad cannot be left under the exclusive control of this administration," Whitehouse said.

But Jon Kyl (R-AZ) countered that no one is on a witch hunt against Americans.

'There is more material out there to be collected against the foreign targets," Kyl said. "Our people certainly don't have the time to try to spy on Americans."

The other big issue is the legal immunity that the intelligence committee's bill provides U.S. phone companies for allowing warrantless wiretaps between 2001 and 2006.

"The companies participated at a great risk of exposure and financial ruin, for one reason and one reason only: In order to help identify terrorists and prevent follow-up terrorist attacks," said Democrat Jay Rockefeller, who chairs the Intelligence committee. "They should not be penalized for their willingness to heed the call during a time of national emergency."

Chris Dodd (D-CT) left the presidential campaign trail in Iowa to oppose the immunity provision for phone companies, which, he says, were under no legal obligation to provide access to their data unless under court order.

"Their legal departments are not made up of freshmen law students here," Dodd said. "It's naive to suggest that somehow they were not aware what the law was here and yet decided to comply. Qwest did not; its legal department felt there should be a court order, and said, 'If you give us one, we'll comply with it.' Of course, there was never a forthcoming court order, which should say something about the intentions of the administration and those that were seeking access to that information."

Dodd and others said that, should the phone carriers be given immunity, courts will never be able to determine the legality of the surveillance with which they were asked to cooperate. But prospects for stripping that immunity from the bill look dim, as lawmakers rush to get President Bush a bill he'll sign.

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