The House recently rejected the president's request to pass and send to the White House a Senate bill to extend surveillance authority and grant telecommunications companies retroactive immunity for assisting in wiretapping. Instead, on March 14, the House passed the FISA Amendments Act of 2008 (H.R. 3773), which rejects immunity for telecommunications companies and imposes stronger civil liberties safeguards.

In summer of 2007, President Bush signed the Protect America Act of 2007 (PAA), which granted 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 sunset provisions that would automatically eliminate the surveillance powers after six months if Congress did not act to extend the authorities. The provisions were scheduled to sunset in February.

In mid-February, the Senate passed the FISA Amendments Act (S. 2248) by a vote of 68 to 29. The bill included 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.

Shortly before Congress's February recess, the House leadership declined to consider S. 2248 and, after President Bush threatened to veto a short extension of PAA, the PAA powers expired. Last week, the House, going into secret session — a rare occasion, not performed since it was invoked to discuss America's involvement in Guatemala 25 years ago — introduced and passed a substitute H.R. 3773 to the previously passed RESTORE Act.

The bill includes a number of provisions to ensure protection of civil liberties while granting broad national security powers. H.R. 3773 includes provisions which:

• Require the government to target and receive warrants for non-U.S.-citizens without receiving individualized showing of probable cause
• Grant no immunity for telecommunications companies for their alleged involvement in illegal warrantless wiretapping programs, though it does allow for certain procedures to allow telecommunications companies to rely upon classified information
• Require approval of the Foreign Intelligence Surveillance Court for surveillance procedures
• Prohibit the government from doing an end-run around the Fourth Amendment by reverse targeting American citizens through surveillance that is targeting foreigners
• Require an audit of government warrantless surveillance practices after 9/11 by a congressional commission

The bill sunsets at the end of 2009, along with various provisions of the USA PATRIOT Act, thereby allowing a new administration to consider their expediency and utility.

The White House denounced the House bill as an affront to the government's efforts to provide national security. The president again vowed to veto the House bill, stating, "Congress should stop playing politics with the past and focus on helping us prevent terrorist attacks in the future. Members of the House should not be deceived into thinking that voting for this unacceptable legislation would somehow move the process along."

Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell issued a joint statement saying that the House bill "would not provide the Intelligence Community the critical tools needed to protect the country." Mukasey and McConnell objected to the bill on three grounds. First, it does not provide what they see as the necessary protections to telecommunications companies and that those companies' cooperation is necessary to conduct the war on terrorism. Second, they argued that requiring court approval for surveillance will result in the loss of valuable intelligence. Finally, Mukasey and McConnell objected to the short sunset, which they argued would create instability of enforcement, and to the creation of a congressional commission to investigate warrantless wiretapping.

On the House floor, Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, pointed to the continuing controversies surrounding the administration's conduct of the war on terrorism. "We learned just yesterday that the FBI was continuing to misuse the authorities we granted it under the Patriot Act six years ago to unlawfully obtain information about law abiding Americans. We learned just four days ago that the National Security Agency was using its massive powers to create a nationwide data base of American citizens," said Conyers.

"The U.S. House today passed responsible legislation that arms our intelligence community with powerful new tools to keep us safe and restores essential constitutional protections for Americans that were sharply eroded when the President signed the Protect America Act into law last August," said House Intelligence Committee Chairman Silvestre Reyes (D-TX). "We have put the security of Americans first and foremost. We will continue to work to move this forward in a manner that provides for both our nation's security and liberty."

The substantive differences between the House and Senate bills leave only two options open for moving forward. Either the differences between the bills will have to be worked out in a House-Senate conference, or the Senate will have to pass H.R. 3773. Given that the Senate has decided to provide immunity to the telecommunications industry and that the administration is openly opposing the House bill, it seems unlikely the Senate will pursue passage of the House bill in its current form. Debates on how to resolve the impasse are expected to continue into the weeks and possibly months ahead.