Democrats: New spy law adds privacy protections

WASHINGTON — Democrats in House of Representatives on Tuesday unveiled a proposed eavesdropping law that they say gives the National Security Agency the power to target suspected foreign terrorists, but protects the constitutional rights of Americans.

The American Civil Liberties Union said the proposed legislation would be an improvement over a law hastily enacted in August because it would add safeguards to ensure privacy rights at home. But the group said the protections don't go far enough.

The Bush administration and the Democratic-controlled Congress are now expected to tussle over the need to protect the United States from terrorists plotting abroad and the need to protect the privacy of Americans whose phone conversations, e-mails or records could be swept up in the eavesdropping.

White House deputy press secretary Tony Fratto said the administration opposed a "rollback" of the August law, known as the Protect America Act.

The NSA isn't required to obtain warrants to eavesdrop on foreigners outside the United States, but it does need warrants when one party is in the United States or is an American abroad. The warrants are issued by a secret court set under the 1978 Foreign Intelligence Surveillance Act (FISA).

In August, the intelligence agencies said they were missing important intelligence because FISA was too restrictive. An important part of the problem was that much of the world's communication now passes through the United States. Intelligence agencies said they were required to get warrants to eavesdrop on suspects who were overseas but whose conversations passed through networks in the United States.

Sometimes it's also impossible for an intelligence agency to know whom the foreigners it's eavesdropping on will be talking to. The administration argued it was impossible to go to the FISA court for all the warrants that would be required.

Congress amended the law, but made it effective for only six months.

The law proposed Tuesday by the chairmen of the House intelligence and judiciary committees would allow the attorney general and the director of national intelligence to apply to the secret court for warrants to conduct surveillance on groups of foreign targets, such as al Qaida members, for up to a year. But it restores safeguards that were removed from the August law.

For example, the FISA court would have to review the procedures used to determine that the people being targeted are outside the United States. The court also would review procedures that require the NSA to black out the identities of people in the United States who aren't court-approved targets.

Other safeguards include reports to Congress and audits by the Justice Department's inspector general.

The bill also makes it clear that searches without warrants aren't allowed in the United States.

Carolyn Fredrickson of the ACLU's Washington office said that the safeguards were an improvement, but that the bill shouldn't allow the administration to get one warrant for a group of people. Such warrants don't have to name the targets of the search or what sources would be tapped.

The ACLU argued that the government shouldn't be allowed to collect phone calls or e-mails from Americans without individual warrants.

The proposed legislation would provide immunity for telecommunications companies that comply with the court orders. But it doesn't give retroactive immunity for companies that cooperated in the warrantless surveillance program that President Bush acknowledged in 2005.

The retroactive immunity is a key demand of the Bush administration.

The bill also limited the scope of surveillance to people who threaten the United States; the administration wanted to cover a broader category of "foreign affairs."

The top Republicans on the judiciary and intelligence committees, Reps. Lamar Smith of Texas and Pete Hoekstra of Michigan, condemned the Democrats' bill, saying it should include retroactive immunity and didn't go far enough in giving U.S. intelligence agencies the tools they need.


The proposed legislation (.pdf)

(Jonathan S. Landay contributed.)

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