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A Rough Start to Revamping FISA

January 24, 2008 - by Donny Shaw

UPDATE (2:30 ET) : A motion to table (kill) Leahy’s Judiciary Bill substitution amendment just passed by a vote of 60-36.

Leahy’s amendment would have removed the telecom immunity provision from the bill.

mini-update: Here is the vote tally; see how your senator voted. Put in simple terms, an “aye” is a vote in favor of granting immunity.


The Senate this morning is beginning its much-anticipated FISA debate with a version of the bill that grants retroactive legal immunity to the telecommunications companies that assisted the Bush Administration in his warrantless wiretapping program. The first order of business on the Senate floor will be a debate over an amendment that would substitute in a different version of the bill — the one as passed by the Judiciary Committee, rather than the Intelligence Committee version — as the base text for debate. Among other things, the Judiciary Committee version does not provide immunity for the telecom companies.

Below is how Pat Leahy (D-VT), the Chairman of the Judiciary Committee and sponsor of the amendment, describes the differences between the Judiciary Committee’s version and the Intelligence Committee’s version:

  • Strong, new language reaffirming that FISA is the exclusive means for conducting foreign intelligence electronic surveillance.
  • Meaningful oversight by the FISA Court by ensuring that the FISA court can conduct oversight of the government’s use of minimization procedures, the procedures used to safeguard against unnecessary intrusion on Americans’ communications and giving the FISA Court the discretion to impose restrictions on the use and dissemination of Americans’ information if the FISA court determines that the procedures used to acquire that information were deficient.
  • Prohibition of ‘bulk collection,’ clarifying that the government is prohibited from using the new authority in the legislation to collect contents of communications in bulk, and narrows the definition of ‘contents.’
  • Strengthened Prohibition on Reverse-Targeting by reducing the risk of reverse-targeting by requiring a FISA court order where a significant purpose of targeting a particular, known person abroad is to acquire the communications of a US person.
  • A fix to provisions governing the targeting of U.S. persons overseas as included in the Senate Intelligence bill. The Intelligence Committee bill provides that the government must make a probable cause showing to the FISA court if it wants to target a US Person overseas, thereby protecting Americans who travel, live or work abroad. The Judiciary bill maintains this important limitation, but adds an emergency requirement for situations where there is no time to seek a FISA court warrant. This ensures that national security will not be jeopardized in time-sensitive investigations.
  • Increased oversight by Congress by mandating that the relevant Offices of Inspectors General jointly examine the legality of the Terrorist Surveillance Program and the process by which the program was authorized, and report back to Congress.
  • Shortened the sunset provision from six to four years.

If this amendment is not approved — and it is expected to fail — Chris Dodd (D-CT) has vowed to filibuster the remaining Intelligence Committee bill over the immunity provision. It’s shaping up to be a rough debate…

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