Congress Reforming Government Surveillance Authority

Legislation to reform expansive surveillance authority moved forward in both the House and the Senate recently. The House passed the RESTORE Act (H.R. 3773), which would reform the Protect America Act (PAA), passed in haste before Congress's August recess. The Senate Judiciary Committee narrowly passed the FISA Amendments Act of 2007 (S. 2248) without telecom immunity provisions that were included in the Senate Intelligence Committee bill, setting up a confusing situation that makes it unclear which version will be sent to the Senate floor for consideration.

PAA granted the government the authority to wiretap anyone, including U.S. citizens, without court approval as long as the "target" of the surveillance is reasonably believed to be located outside the country. The bill is scheduled to sunset in less than three months, but the House and Senate leadership agreed to reform the bill before then.

The Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act) was introduced by Reps. John Conyers (D-MI), chairman of the House Judiciary Committee, and Silvestre Reyes (D-TX), chairman of the House Intelligence Committee.

The RESTORE Act would require a finding of probable cause for surveillance targeting American citizens, including Americans located overseas. The legislation would also permit a blanket order for surveillance of multiple foreign targets to be granted by the Foreign Intelligence Surveillance Court. However, the Justice Department Inspector General must regularly report on the use of blanket orders and the number of U.S. persons' communications collected in the orders' use. The Justice Department Inspector General would also be required to audit the Terrorist Surveillance Program and other warrantless surveillance programs.

The bill faced resistance from House Republicans when it was pulled from the floor in October but passed with bipartisan support on Nov. 15 with a 227-189 vote. The White House immediately issued a statement saying, "This evening House Democrats passed legislation that would dangerously weaken our ability to protect the Nation from foreign threats."

Chairman Reyes, however, characterized the RESTORE Act as helping to "restore the balance between security and liberty." In a statement issued after the vote, Reyes explained, "The RESTORE Act puts the FISA Court back in the business of protecting Americans' constitutional rights — after the President and Vice President put that court out of that business six years ago."

The Senate Judiciary Committee voted S. 2248 out of committee on a narrow 10-9 party-line vote. When the Senate Intelligence Committee passed the same bill in October, it included a provision that would provide immunity for any telecommunications company that assisted in illegal counterterrorism operations after Sept. 11, 2001. The Senate Judiciary Committee rejected an amendment by Sen. Russ Feingold (D-WI) to strip out the immunity provision by a vote of 10-7, with two Democrats, Sens. Dianne Feinstein (D-CA) and Sheldon Whitehouse (D-RI), joining the Republicans. In a quick turnabout, Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, offered a motion to move the bill to the Senate floor without the immunity provisions. It passed on a 10-9 vote.

Senate Majority Leader Harry Reid (D-NV) will now have to decide which version of the FISA bill to bring to Senate floor, the Judiciary Committee version without immunity for the telecommunications companies, or the Intelligence Committee version with immunity. Since there will inevitably be an amendment to either strip immunity or add it, Reid also needs to decide whether this type of amendment will require 60 votes to kill a potential filibuster or a simple majority.

Recently confirmed Attorney General Robert Mukasey and the Director of National Intelligence Mike McConnell issued a statement opposing the bill and said that they would recommend that President Bush veto it. They stated that the Senate Judiciary Committee bill "would not provide the intelligence community with the tools it needs effectively to collect foreign intelligence vital for the security of the Nation."

The battle over telecom immunity is likely to occur on the Senate floor. Sen. Arlen Specter (R-PA) is already drafting a compromise which would substitute the government for the telecommunications companies as defendants in the forty-plus lawsuits currently moving through the courts. This would allow the cases to be heard but would hold the government liable for damages if any of the plaintiffs prevail. The Senate is expected to vote on S. 2248 before the close of session.

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