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FISA Reauthorization

In December of 2005, The New York Times revealed that President Bush had ordered a large-scale program of phone and e-mail surveillance against Americans for various reasons including possible links with terrorist groups. In the ensuing months, it became clear that this program had been going on since late 2001, and had been conducted with minimal Congressional oversight, no Congressional authorization, and for alleged offenses other than terrorism.

Furthermore, the National Security Agency (NSA) has been secretly collecting the phone records of tens of millions of Americans, which goes well beyond the targeting of a handful of legitimate suspects. Members of Congress from both parties have been highly critical of the President’s program, which violates the requirements of the Foreign Intelligence Surveillance Act of 1978 (FISA) and poses a serious threat to the basic Constitutional rights of American citizens.

On November 15, 2007, the U.S. House of Representatives approved the RESTORE Act (H.R. 3773) by a vote of 227 to 189. I voted for this bill because it strikes an important balance between providing the intelligence community the tools necessary to track communications, while still upholding the civil liberties of U.S. residents. The RESTORE Act would allow the intelligence community to conduct surveillance on foreign-to-foreign communications without a FISA Court order. It would protect the rights of Americans by requiring the Attorney General and Director of National Intelligence to certify that such surveillance will not target individuals residing within the U.S. If intelligence agency officials seek to conduct surveillance on a U.S. resident, they must receive approval from the FISA Court. The RESTORE Act would not provide retroactive liability protection to the communication service providers for information they provided to the government under the Administration’s warrantless surveillance program.

On February 12, 2008, the U.S. Senate approved the FISA Amendments Act (S. 2248) by a vote of 68 to 29. While much of this legislation was similar to the House RESTORE Act, the Senate bill would provide full retroactive immunity to communication service providers that participated in the Administration’s warrantless surveillance program.

Since passage of these two contrasting bills, leaders of the U.S. House of Representatives and the U.S. Senate have worked to craft compromise legislation. On June 19, 2008, Congressman Silvestre Reyes introduced the compromise bill, known as the FISA Amendments Act of 2008 (H.R. 6304). While this bipartisan legislation is not perfect, it strikes an important balance between the various proposals and is stronger than the bill originally proposed by the Senate and supported by the President.

H.R. 6304 would provide the intelligence community the tools they need while protecting U.S. citizens from unlawful surveillance. It would require the intelligence community to obtain a warrant in order to conduct surveillance on an American citizen whether they are in the United States or living abroad. The bill would extend the current emergency powers, by providing the Attorney General and Director of National Intelligence the ability to begin surveillance activities without a warrant as long as they submit a warrant application to the FISA Court within seven days of initiating surveillance activities. This legislation will not give government officials who may have violated the law under the President’s warrantless surveillance program immunity. H.R. 6304 would expire after four and a half years.

There are approximately 40 cases pending in court on the communication service providers’ cooperation with the President’s warrantless surveillance program. Under existing law, the communication service providers can ask the court to provide them immunity if they can prove that the Administration requested that the company provide the information. However, the Bush Administration is not allowing these companies to provide evidence of the Administration’s requests, placing significant restrictions on the evidence the communication service providers can use to defend themselves in court.

H.R. 6304 would not grant retroactive liability protection to these communication service providers. It requires federal district courts to review the evidence submitted by the Attorney General and determine whether or not there is substantial evidence which indicates the activity was authorized by the President and determined to be lawful. H.R. 6304 would allow the courts, which have the appropriate security clearance, to consider this evidence in private. No secret information would be made public. The communication service providers would be able to make their case under existing provisions that protect them when the Administration requires them to hand over information, allowing the established court system to determine whether these companies acted within the law.

On June 20, 2008, the U.S. House of Representatives passed the FISA Amendments Act of 2008 by a vote of 293 to 129, with my support. The U.S. Senate approved the legislation on July 7, 2008 and it was signed into law by the President on July 10, 2008.