During the week of Feb. 11, the White House and Democrats in Congress exchanged blows over whether and how to extend the surveillance powers of the Protect America Act of 2007 (PAA). The Senate's approach, the FISA Amendments Act (S. 2248), included a provision granting immunity for telecommunications companies that helped the government monitor citizens through its warrantless wiretapping program. The House leadership, opposed to immunity for telecommunications companies, refused to consider the bill. Instead, House leaders wanted to pass a three-week extension of PAA powers to give themselves time to resolve differences with the Senate, but House Republicans blocked the move. As a result, the PAA expired at midnight Eastern time on Feb. 16. Despite the expiration, the government still has numerous surveillance tools available as debate continues.

On Aug. 6, 2007, President Bush signed the Protect America Act of 2007, granting the government the authority to wiretap anyone, including U.S. citizens, without any court approval as long as the "target" of the surveillance is located outside the U.S. The bill included a six-month sunset.

On Feb. 12, the Senate passed the FISA Amendments Act (S. 2248) by a vote of 68 to 29. Various amendments to strike telecommunications industry immunity, limit bulk collection, limit use of illegally obtained information, and prohibit targeting foreigners with the purpose of collecting information on American citizens were voted down. As a result, the Senate voted to grant immunity for telecommunications companies that may have participated in the administration's illegal warrantless wiretapping program and granted the administration wide warrantless surveillance powers. Under the Senate-approved bill, the administration could target foreign surveillance involving communications of American citizens without judicial approval.

Late last year, on Nov. 15, 2007, the House passed the RESTORE Act (H.R. 3773) to address these FISA issues. Importantly, the RESTORE Act did not include a telecommunications immunity provision. Moreover, it scaled back the expansive authority granted under PAA, requiring a finding of probable cause for surveillance targeting American citizens, including Americans located overseas, but permitting blanket orders in which multiple people could be targeted.

Given the important differences between the Senate and House bills, the House leadership rejected consideration of S. 2248 and instead moved to extend the PAA for another three weeks to permit further negotiations between the House and Senate bills. The White House, however, opposed the extension, as did House Republicans and a few Democrats. This was enough to block passage of the extension.

Despite the fact that the government still has multiple surveillance tools at the ready, President Bush responded to the expiration of the PAA by saying, "American citizens understand, clearly understand that there's still a threat on the homeland. There's still an enemy which would like to do us harm." He added, "By blocking this piece of legislation, our country is more in danger of an attack." In his comments about blocking legislation, Bush was referring to House leadership's refusal to consider S. 2248, not the move to block the extension of PAA powers for three weeks.

"If our nation is left vulnerable in the coming months, it will not be because we don't have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations—including al Qaeda—that have gained in strength since 9/11," retorted Rep. Silvestre Reyes (D-TX), chairman of the House Permanent Select Committee on Intelligence, in a letter to Bush on Feb. 14.

Reyes went on to state, "It is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant [telecom] immunity for actions that happened years ago."

Despite the expiration of PAA, the warrants received under its authority are active for a full year. Moreover, if new targets arise, the government still has the authority to receive FISA orders from the Foreign Intelligence Surveillance Court, as it has done for the past thirty years.

As House Speaker Nancy Pelosi (D-CA) explained, the FISC no longer has a backlog, and a new order can be received in a matter of minutes. Pelosi stated that the president "refused to support an extension, which can only mean he knows our intelligence agencies will be able to do all the wiretapping they need to do to protect the nation. That surveillance can be undertaken under broad orders authorized under the PAA or under orders that can be obtained through the FISA court."

Director of National Intelligence Mike McConnell, however, argued that the FISA procedures are overly burdensome, slowing down intelligence gathering practices, and that without retroactive liability protections, telecommunications companies are unwilling to cooperate with the administration.

McConnell urged Congress to "ensure that we do not again have gaps or lapses in gathering intelligence necessary to protect the nation because of an outdated law or a failure to shield private parties from liability for helping to protect the nation."

This debate is not expected to go away anytime soon. The PAA will be at the center of the House's attention when it returns from a one-week Presidents Day recess on Feb. 25.