Surveillance law faces renewed scrutiny in Congress

Lawmakers returned to Capitol Hill this week ready to scrutinize revisions to the U.S. foreign intelligence law they hurriedly passed before the month-long August congressional recess. That examination began Wednesday with a House Judiciary Committee hearing at which several members and witnesses slammed the changes.

The mandate, which is set to expire in six months unless it is extended by Congress, allows the director of national intelligence and the attorney general to authorize the spying without first getting warrants from a secret court created by the 1978 Foreign Intelligence Surveillance Act.

Committee Chairman John Conyers, D-Mich., outlined three "tests" that ought to be met as future legislative action is considered. "We must be able to conduct real, meaningful oversight, must provide courts with a meaningful role in reviewing surveillance that applies to American citizens, and must consider the role of telecommunications carriers," he said.

As FISA revisions were being debated, the Bush administration unsuccessfully pushed for retroactive immunity for U.S. telecom providers that reportedly have participated in government surveillance. Conyers said he wants to know "what role they played [and] why they volunteered in the first place."

New York Democrat Jerrold Nadler, who chairs the Constitution, Civil Rights and Civil Liberties Subcommittee, also raised concerns about the recently implemented changes. He argued that the law "fails to protect our fundamental freedoms" and was passed because of "fear-mongering and deception."

Full committee ranking Republican Lamar Smith of Texas and Trent Franks, R-Ariz., said they hope the hearing will lead to bipartisan FISA modernization. "We are a nation at war," Smith said, noting that promises made by critics to overturn the changes would be a mistake. "Our liberties cannot flourish without security," he said.

Former Rep. Bob Barr, R-Ga., said last month's "supposed fix" to FISA "goes far, far beyond any reasonable effort" to address technological problems with the law. Suzanne Spaulding, a former CIA assistant general counsel, added that it "does not provide clear guidance" and grants "very broad authority and inadequate safeguards."

Morton Halperin, director of the Open Society Institute's Washington office, said there has been no explanation from the administration about the real differences between the proposals of Democratic leaders and the White House.

But University of Virginia law professor Robert Turner claimed that "new technology has turned FISA on its head" and the Constitution gives the president executive authority that carried with it the general control of foreign affairs. "It is absolutely clear that this is presidential business," he said.

Conyers said he has talked with Smith about potentially holding closed-door hearings that would discuss classified FISA-related information, as well as inviting lawmakers who are not on the committee to share advice as the panel weighs further changes to the law.

The Senate Judiciary and Intelligence committees also plan on tackling FISA. A spokeswoman for Judiciary Chairman Patrick Leahy, D-Vt., said her boss hopes to schedule a late-September hearing and Intelligence Chairman John (Jay) Rockefeller, D-W.Va., issued a statement saying his panel is "poised to fix the shortcomings" in the law.