FISA Amendments Act of 2008

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This article is part of SourceWatch / Congresspedia coverage of the
Bush administration's domestic spying programs.
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Introduced in the House (H.R. 6304), the FISA Amendments Act of 2008 is legislation reforming the 1978 Foreign Intelligence Surveillance Act. The legislation requires some judicial review of new surveillance activities, and orders lawsuits against telecom companies dismissed if the Bush administration certifies that it requested warrantless surveillance and told the telecom companies it was legal. The House approved the new bill on June 20, 2008, while the Senate followed suit on July 9, 2008. On July 10, President George W. Bush signed the bill into law.


Contents

Background

With the advent of the Internet and following the 9/11 terror attacks, President Bush pushed Congress to weaken the standards of proof and warrants required for surveillance.[1] In 2005 the issue exploded again with revelations that agencies had been engaged in telephone surveillance of Americans without FISA court approval and that most of the major telecom companies had aided the surveillance. Subsequently, individuals and civil liberties groups brought more than 40 lawsuits against telephone companies that helped the government’s warrantless eavesdropping.[2]

Congress spent much of late 2007 and early 2008 considering FISA reform in the form of the RESTORE Act. The House approved a version of the bill that included tougher oversight of intelligence gathering and required a full review of telecom companies’ involvement in the warrantless spying. The Senate matched that and further loosened FISA oversight while granting retroactive immunity to the telecom companies for violating the rights of Americans and breaking privacy laws.[3]

Unable to reconcile their differences, the House and Senate shifted debate behind closed doors. There, Democratic and Republican leaders negotiated (H.R. 6304), the FISA Amendments Act of 2008.

Current status

The House version of the bill (H.R. 6304) was approved on June 20, 2008. Members of the Senate approved the legislation on July 9, 2008, and President Bush signed it on July 10.[4]

House version passed in June 2008


Bill summary

The "FISA Ammendments Act of 2008" was introduced on June 19, 2008 by Intelligence Committee Chairman Rep. Silvestre Reyes (D-Tex.). The bill was co-sponsored by Rep. Peter Hoekstra (R-Mich.) and Ranking Member of the Judiciary Committee Lamar Smith (R-Tex.). It was sent to the Senate after being passed in a 293-129 vote. The most contentious issue for the bill was legal immunity for telecom companies that participated in President Bush’s warrantless wiretapping program. The legislation would:

  • Allow federal judges to waive lawsuits if the telecom firms can prove that they were authorized by the president and assured that the program was legal.[5]
  • Allow the government to perform surveillance on people in foreign countries communicating with people in the United States.
    • However, the secret FISA court would first have to review the government’s intelligence-gathering techniques, except in “exigent” circumstances.[5]

Bill history

House passes bill in June 2008


On June 20, 2008, the House approved its version of the FISA Amendments Act of 2008, by a margin of 293-129. The vote was an endorsement of a compromise between Republicans and conservative Democrats, although the legislation was opposed by a majority of Democrats.

Senate version

Bill summary

The Senate voted on the same legislation as approved by the House. In addition to the provisions outlined above, the bill would further reinforce the concept that FISA is the exclusive means for conducting electronic intelligence on foreign individuals.[6]

It also required an inspector general review of the spy program.[7]


Bill history

A series of amendments, each regarding the telecom immunity provisions of the bill, were debated and then defeated by wide margins.

Dodd amendment

Sen. Chris Dodd (D-Conn.) offered an amendment to strip legal immunity for the phone companies outright. Predetermined rules of debate meant the amendment needed 60 votes to pass -- it received 32.
Same for all scorecards:

Scored vote

Scorecard: Drum Major Institute 2008 Senate Scorecard

Org. position: Aye

Description:

"Granting retroactive immunity to companies that illegally spied on citizens sets a dangerous precedent for corporations to trample the rights of middle-class Americans without having to face any consequences for breaking the law. Telecommunications companies, at the behest of the Bush Administration, illegally monitored American citizens’ private e-mail correspondence, phone calls, password protected web activity, and other communications. This violated Americans’ Fourth Amendment right against unwarranted searches and seizures, the Foreign Intelligence Surveillance Act and the contractual rights of private customers who signed privacy agreements with these companies. Our civil justice system allows regular Americans to hold corporations accountable when they violate cherished rights such as those outlined in our Constitution. Granting retroactive immunity would weaken middle-class Americans’ ability to take on powerful corporations for breaking the law. What’s more, retroactive immunity would weaken the ability of middle-class consumers to trust that their contracts with corporations will be honored and that the legal system will treat their constitutional rights as more than symbolic. In short, granting retroactive immunity would severely undermine Americans' faith in the legal system. Granting retroactive immunity also sets a dangerous precedent by giving the Administration unbridled power, under the guise of pursuing security interests, to pressure companies into violating Americans’ rights with impunity and to protect those corporations from liability for a range of other violations of the law."

(Original scorecard available at: http://www.drummajorinstitute.org/library/report.php?ID=87)

Scored vote

Scorecard: National Journal 2008 Senate Scorecard

Org. position: Nay

Description:

"Eliminate a proposal to grant retroactive legal immunity to telecommunications companies that assisted with government surveillance"

(Original scorecard available at: http://www.nationaljournal.com/njmagazine/cs_20090228_4813.php)

Spector amendment

A provision introduced by Sen. Arlen Spector (R-Penn.), ranking member of the Judiciary Committee, would have required court review of the spy program's constitutionality prior to dismissing any lawsuits. It was also defeated, 37-61.

Bingaman amendment

A third amednment, offered by Sen. Jeff Bingaman (D-N.M.), would have put off any action on immunity for a period of 90 days, while the inspector general report was prepared. Upon its completion and based on it contents, the Senate would then consider the immunity provision.[7] The amendment was defeated by a 56-40 margin.

Senate passes bill in July 2008

The Senate passed the bill on July 9, 2008.


Same for all scorecards:

Scored vote

Scorecard: National Journal 2008 Senate Scorecard

Org. position: Aye

Description:

"Pass an overhaul of the Foreign Intelligence Surveillance Act, including retroactive legal immunity for telecommunications companies."

(Original scorecard available at: http://www.nationaljournal.com/njmagazine/cs_20090228_4813.php)

Presidential signature

On July 10, 2008, President George W. Bush signed the legislation into law. Surveillance of foreign targets, including any possibly in contact with Americans, could begin immediately -- without a warrant -- if the Attorney General says the surveillance is urgent. Several civil rights groups are expected to file lawsuits against the legislation, saying it violates the 4th Amendment.[4]

Articles and Resources

See also

References

  1. Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, The White House, December 19, 2005.
  2. David Stout, Federal Judge Orders End to Warrantless Wiretapping, The New York Times, August 17, 2006
  3. Helen Fessenden, "House Democrats introduce surveillance bill rewrite," The Hill, October 9, 2007.
  4. 4.0 4.1 "President Signs Electronic Surveillance Legislation; Lawsuits Expected," CQ Politics, July 10, 2008
  5. 5.0 5.1 Mike Soraghan, "House passes FISA overhaul," The Hill, June 20, 2008.
  6. Tim Starks, "Looming Deadline, Political Pressures Led Democrats to Help Clear FISA Bill," CQ Politics, July 9, 2008
  7. 7.0 7.1 Tim Starks, "Senate Clears Electronic Surveillance Bill," CQ Politics, July 9, 2008

External articles

Mike Soraghan, "House passes FISA overhaul," The Hill, June 20, 2008.

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