Slim Support for Telecom Immunity Repeal

Feingold and other Democrats told Obama administration officials that more privacy protections and heightened oversight measures are needed in the bill. “There can be no question that statutory changes to our surveillance laws are necessary,” Feingold said. “Congress cannot grant overly broad authorities and just keep its fingers crossed that they won’t be misused, or interpreted by aggressive executive branch lawyers in as broad a way as possible.” Congress’ job is to put “appropriate limits” on the government, to protect privacy while allowing officials to pursue wrongdoers, Feingold said.

The Obama administration has recommended renewal of three expiring provisions that deal with rules on wiretapping, seizure of business records and spying on suspected foreign agents. But many lawmakers want the bill to call for a top-to-bottom review of surveillance laws. Administration officials say they're open to suggestions from Congress. But Assistant Attorney General David Kris repeatedly declined to comment on any bills, including a measure that Judiciary Chairman Patrick Leahy of Vermont introduced Tuesday.

“It is time to take another look at the authority” given to the government, Leahy said at the hearing. Kris said the administration won’t comment on the legislation because officials haven’t had time to review the proposals thoroughly. “We want to try and see if these tools can be sharpened,” Kris said. Leahy’s bill would add oversight of government data-collection in espionage cases, a step that many lawmakers support. “It is important to ensure there is aggressive oversight,” Justice Department Inspector General Glenn Fine said at the hearing. “We believe this oversight should come from several different levels and from different entities -- not only congressional oversight.”

The department announced new policies Wednesday to increase accountability in the government’s use of the state secrets privilege in lawsuits. Attorney General Eric Holder said the policies, taking effect Oct. 1, will help rebuild public trust by ensuring that the privilege “is invoked only when necessary and in the narrowest way possible.” The privilege was raised in lawsuits against telecom carriers following public reports of the Bush administration’s expanded surveillance operations after Sept. 11. Under the new policy, the privilege can’t be invoked in court unless Justice is “satisfied there is strong evidentiary support for it,” Holder said. The policy requires officials to show a “risk of significant harm to national security” before they can invoke the privilege, and it can’t be raised “for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.” The policy calls for strict oversight.

Leahy praised the announcement, saying it will bring a “higher degree of transparency and accountability to a process previously shrouded in darkness.” But Feingold called the policy “disappointing because it still amounts to an approach of ‘just trust us.'” He proposed independent court review of the government’s use of the state secrets privilege. Attorney Ben Wizner of the American Civil Liberties Union National Security Project said the parent organization considers the change a “step forward” but endorses court review of the policy.

An executive of the Center for Media and Democracy said at the Senate hearing that surveillance communications rules approved last year are “unconstitutional.” Under the Foreign Intelligence Surveillance Act Amendments Act, the government isn’t required to disclose to a judge the facility where electronic information is acquired, “let alone particular phones,” said the center’s executive director, Lisa Graves. She supported adoption of Feingold’s bill to deal with the issues.