Congress Wrestles with Surveillance Bills

WASHINGTON, D.C. -- Although civil liberties advocates have applauded the efforts of lawmakers to temper a pair of sweeping anti-terrorism bills making their way quickly through both houses of Congress, many fear that, no matter what passes, they will have suffered a major loss.

"We are facing a significant erosion of civil liberties no matter what we do to this bill," Center for Democracy and Technology (CDT) Executive Director Jerry Berman said in a conference call today.

In what has become an almost daily ritual in recent days, Berman talked to reporters about the latest developments in the debate over legislation that would expand federal phone and electronic surveillance authority; make it easier for government officials to obtain phone, Internet and business records; and ease evidentiary requirements for obtaining wiretaps.

In a victory for civil liberties advocates, the Senate has agreed to consider four privacy amendments proposed by Sen. Russell Feingold, D-Wis., when it takes up Uniting and Strengthening America Act of 2001 this week.

But while Berman said he supports the amendments, which would modulate some of the surveillance expansions contained in the Senate package, he said the changes would "certainly not cure the significant defects in the bill."

Similarly, while CDT and other public interest groups have expressed satisfaction that the House appears poised to take up its own version of the anti-terrorism proposal. Rather than simply rubber stamp the broader Senate bill, the civil liberties community remains strongly opposed to both the Senate and the House versions.

As recently as Tuesday evening, supporters of the House bill - called the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 - had feared that the legislation would be blocked.

Although nearly identical to the Senate bill in many ways, the PATRIOT Act includes a sunset clause that would require the government to reassess the expanded surveillance powers contained in the legislation after two years.

Although the Bush administration has been stumping hard for the Senate bill, which received the Justice Departments direct stamp of approval, and contains no sunset clause, many lawmakers have said that the House sunset provision is essential to maintaining a broad consensus on the bill.

"I think the sunset is a very important matter with a lot of our members, and a lot of the votes that the Chairman [of the House Judiciary Committee] has for the bill is borne out of that sunset," House Majority Leader Dick Armey, R-Texas, said earlier this week.

Assuming that the Senate passes a bill that contains no sunset clause and the House passes language including the clause, the real debate will begin when representatives for the two houses meet to reconcile the differences in the bills, CDT policy analyst Ari Schwartz said Thursday.

Should the sunset provision be left out of the final language that makes it to the Presidents desk, opponents of the legislation say they may have a very difficult time challenging the new surveillance powers in court.

Since surveillance is often invisible to the target of an investigation, lawyers may have a tough time finding cases that could serve as vehicles for challenging the legislation, Berman said.

David McGuire, Newsbytes