"Lame duck" might not mean "powerless" after all. With only six months left in office, the Bush administration has won a rare legislative victory on a contentious issue: secret government eavesdropping.
The Senate on July 9 passed a final bill overhauling eavesdropping rules. The move marked the effective end of nearly a year of ferocious legislative argument over the extent of government electronic surveillance and the nature of surveillance oversight in the electronic age.
The result is a measure that gives the White House much of what it wants. In particular, it shields from civil lawsuits telecommunications firms that, without court permission, helped the government listen in on the communications of Americans in the months following Sept. 11.
The administration characterizes the measure as fair treatment of patriotic companies. Critics call it a coverup.
"Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying," said Kevin Bankston, senior staff attorney of the Electronic Frontier Foundation in San Francisco, earlier this month.
About 40 such lawsuits are currently pending in a federal district court. The White House had said it would veto any eavesdropping bill that did not contain the immunization provision, and Democratic leaders in Congress – worried about being portrayed as soft on national security – eventually included it.
The position of presumptive Democratic nominee Sen. Barack Obama of Illinois is indicative in this respect. Last year he vowed to support a filibuster of any bill that included retroactive immunity for telecommunications firms. But last month he said he no longer supported a filibuster and in fact would vote for the bill.
"The issue of the phone companies per se is not one that overrides the security interests of the American people," Senator Obama told reporters on June 25.
Beyond the granting of immunity, the bill sets new rules for government eavesdropping. For instance, it tightens the scope of the existing Foreign Intelligence Surveillance Act (FISA) protections by requiring individual, court-approved warrants for the surveillance of Americans abroad.
As is the case in current law, the bill would require warrants for the surveillance of communications between Americans physically located in the United States and people abroad.
The secret FISA court would have to approve the procedures used by intelligence agencies in domestic surveillance. But critics say the FISA court approves virtually all measures brought before it and does not serve as an adequate guard of individual rights.
"The protection afforded by that [court] review is almost completely illusory," wrote the American Civil Liberties Union in a June 25 letter to senators.