After months of negotiations and stalled efforts, the House leadership reached common ground with the White House in passing a bill that reforms the legality of foreign surveillance and grants telecommunications companies retroactive immunity for assisting in warrantless wiretapping. On June 20, the House passed the FISA Amendments Act of 2008 (H.R. 6304) by a vote of 293 to 129. Despite opposition from key senators and the public interest community, at this point it appears likely to pass the Senate as well.

The public interest community heavily criticized the bill for expanding government surveillance powers to permit wiretapping of American citizens without judicial approval and for essentially granting telecommunications companies a free pass for allegedly illegally participating in the National Security Agency's (NSA) warrantless surveillance program.

In the 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 PAA provisions expired in March after negotiations between the Senate and House faltered. Since then, the House leadership has been in negotiations with the Senate leadership and the White House.

While hailed as a compromise bill by the House leadership, advocates have criticized the legislation for failing to preserve the Fourth Amendment's protection against unreasonable searches and seizures and for failing to provide adequate access to U.S. courts.

Telecom Immunity

The central issue of contention between the House and Senate has been whether to grant retroactive immunity to telecommunications companies alleged to be involved in the NSA's Terrorist Surveillance Program (TSP). Numerous lawsuits against the companies are currently proceeding through the courts, and the Bush administration, along with the Senate, has been pushing for some mechanism to dismiss these cases. As reported previously in the Watcher, Speaker Nancy Pelosi (D-CA) refused to compromise on this issue earlier in the year, and the PAA provisions were allowed to expire.

Under H.R. 6304, the "compromise" leaves the question of immunity for the courts to decide. However, the bill stipulates the use of an easy standard to qualify for the immunity. The bill requires courts to determine if there is "substantial evidence" showing that telecommunications companies received written requests stating that the wiretapping activity was authorized by the president. However, it is well accepted that telecommunications companies participating in TSP have such letters; therefore, the court test is widely viewed as meaningless.

"This immunity provision will effectively destroy Americans' chance to have their deserved day in court and will kill any possibility of learning the extent of the administration's lawless actions," stated Caroline Frederickson of the American Civil Liberties Union (ACLU).

Expanded Government Surveillance Authority

While the PAA permitted the government to target anyone overseas for surveillance without receiving a warrant or judicial approval, H.R. 6304 limits the scope of such warrantless surveillance to non-Americans. However, warrants or judicial approvals still aren't required even if the overseas target contacts an American citizen. Such "reverse targeting" may provide an end-run around the protections of the Fourth Amendment. While the courts must approve the minimization procedures for collecting such intelligence, there is nothing requiring the government to seek individualized orders once the real target has shifted to an American citizen. Moreover, there is nothing preventing the government from engaging in the bulk collection of overseas communications.

"Congress could have given intelligence agencies the necessary authority to domestically collect the communications of targets abroad while preserving privacy protections for Americans," said Leslie Harris, President and CEO of the Center for Democracy and Technology. "Instead, under this flawed bill, intelligence agencies can authorize themselves to conduct surveillance. Meanwhile, court review of surveillance procedures will often be too little and too late to provide meaningful protection."

Modest Improvements

It appears H.R. 6304 contains a few modest improvements over the PAA without the major changes the Democratic leadership was insisting on at the start of the standoff. First, the bill asserts that the Foreign Intelligence Surveillance Act (FISA) is the exclusive means by which surveillance may be conducted. This may prevent a future administration from engaging in a secret surveillance program, like the NSA spying program, outside of the established legal framework. Second, the bill calls for a review of the TSP program by the inspector general. The administration has thus far successfully resisted a thorough review of the spying program. Third, the bill has a sunset of 2011, which will require the next administration and Congress to reconsider its provisions.

Despite these modest improvements, the public interest community has united to combat the bill in the Senate, where it is expected to come up for a vote on Tuesday, June 24. Several senators have voiced strong opposition to the compromise, including Sens. Russ Feingold (D-WI), Patrick Leahy (D-VT), Christopher Dodd (D-CT), and Arlen Specter (R-PA).

"It is totally insufficient to grant immunity for the telephone companies' prior conduct based merely on the written assurance from the administration that the spying was legal," said Specter.

Feingold asserted that the "proposed FISA deal is not a compromise; it is a capitulation."

Leahy issued a statement explaining his refusal to support the bill. "I have said since the beginning of this debate that I would oppose a bill that did not provide accountability for this administration's six years of illegal, warrantless wiretapping."

Dodd, who called the compromise on retroactive immunity by another name, stressed, "The President should not be above the rule of law, nor should the telecommunications companies who supported his quest to spy on American citizens."

Despite such opposition in the Senate, the bill is expected to pass. The bill is also expected to be signed by the president because it already has support from key administration officials. J.M. McConnell, the Director of National Intelligence, and U.S. Attorney General Michael Mukasey voiced their support, stating that H.R. 6304 provides "the Intelligence Community with the tools it needs to collect the foreign intelligence necessary to secure our Nation while protecting the civil liberties of Americans."