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DOJ official urges telecom immunity, limited FISC role in Senate surveillance bill

[JURIST] A Bush administration official Wednesday called the Senate's proposed domestic surveillance bill "generally a strong piece of legislation," but repeated several administration demands, including a provision granting blanket immunity to telecommunications companies from privacy lawsuits related to their participation in the NSA warrantless surveillance program [JURIST news archive], and the elimination of a proposal to extend the jurisdiction of the court that administers the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive] to cover surveillance of United States citizens located outside the country. Kenneth Wainstein, an assistant attorney general with the US Department of Justice, made the comments before the Senate Judiciary Committee, which is now considering the FISA Amendments Act of 2007 [PDF text]. Wainstein said [text]:

[The Bush Administration] strongly oppose[s] proposed subsection 703(c) of that bill, which would introduce a new role for the FISA Court with respect to collecting intelligence from United States persons located outside the United States.

It is unwise to extend this new role to the FISA Court. Traditionally, surveillance of United States persons overseas has been regulated by a time-tested Executive Branch process under Executive Order 12333. That executive order requires the Attorney General to make an individualized probable cause determination before the Government may conduct foreign intelligence surveillance on a United States person overseas. Prior to authorizing the use of such techniques, the Attorney General must determine that there is probable cause to believe that the United States person being targeted is a "foreign power" or "agent of a foreign power." ...

It would be a significant departure to extend the role of the FISA Court and require the Government to obtain the approval of the court to collect foreign intelligence regarding United States persons overseas... It makes little sense to create a court approval requirement in the context of foreign intelligence collection—when the objective is the defense of our national security and operational flexibility and speed are critical to achieve that objective. Congress did not create this role for the FISA Court when it enacted FISA in 1978, and it should not extend the court's role in that regard in this legislation.
Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) said [text] Wednesday that the administration has "belatedly responded" to Committee requests for documents [JURIST report] relating to the legal justification for the administration's proposal to grant retroactive immunity to telecommunications companies [JURIST report], which was included in the version of the bill approved by the Senate Intelligence Committee on October 23. Leahy expressed "grave concern" over the immunity proposal:
The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass. If Americans' privacy is to mean anything, and if the rule of law is to be respected, that would be the wrong result.

A retroactive grant of immunity or preemption of state regulators does more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress.
Wainstein also expressed the Bush administration's strong disapproval for the House version of the FISA amendments, known as the RESTORE Act of 2007 [HR 3773 materials; House summary, PDF], which would in part increase court oversight of the Terrorist Surveillance Program [DOJ fact sheet] run by the National Security Agency.

In early August, Congress passed [JURIST report] the Protect America Act 2007 (PAA) [S 1927 materials], legislation that gives the executive branch expanded surveillance authority for a period of six months while Congress works on long-term legislation to "modernize" FISA. Reuters has more. The Washington Post has additional coverage.

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