Watch Speaker Pelosi speak in support of the bill:
The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed.
Key points:
- Like the RESTORE Act, the House bill provides for collection against terrorist organizations such as Al Qaeda, while providing prior court approval of acquisition and an on-going process of review and oversight in order to protect Americans’ privacy.
- The House Bill goes beyond the RESTORE Act by adopting provisions from the Senate bill that provide – for the first time – statutory protections for U.S. persons overseas, to ensure that surveillance of their communications are always conducted through the courts.
- The House bill does not confer retroactive immunity on telecommunications carriers alleged to have participated under the President’s Warrantless Surveillance Program. It provides a mechanism for the carriers to assert existing immunity claims and to guarantee that they have the fair hearing in court currently prevented by the Administration’s assertion of the state secrets privilege.
- In order to fully ascertain the scope and legality of the TSP, the House bill also creates a bipartisan Commission on Warrantless Electronic Surveillance Activities with strong investigatory powers.
Balancing Effective Counterterrorism Tools and Protection of Americans’ Liberties
- Effective Judicial Review: The House bill requires that the Administration seek approval for broad authorizations from the FISA court before commencing surveillance, except in the case of an emergency when immediate action is needed. This is consistent with FISA and the protections of the Fourth Amendment, while providing the government flexibility to begin surveillance quickly.
- Reverse Targeting: The House bill specifically prohibits reverse targeting and preserves RESTORE Act reverse targeting protections under the “significant purpose” test. The bill requires that guidelines be promulgated to prevent reverse targeting and sets forth specific criteria that must be included. These guidelines are subject to ongoing review by Congress, Inspector General audits, internal agency compliance reviews, and ongoing FISA Court monitoring.
- Flexible Procedures for Overseas Targets: Programmatic authorizations do not require individual warrants for overseas terrorists, but for the first time protects U.S. Persons when they are in other countries.
Holding the Administration Accountable
- Commission on Warrantless Wiretapping: To find the underlying cause of the President’s warrantless surveillance program, the House bill creates a bipartisan Congressional Commission on Warrantless Electronic Surveillance Activities. This Commission will take evidence and conduct hearings in order to examine all programs and activities pertaining to the TSP. Like the 9/11 Commission, the Commission will make pertinent findings and recommendations in both classified and unclassified reports.
- Inspectors General to Audit Warrantless Wiretapping Programs: The House bill requires all the inspectors general to collaborate on a retrospective audit of the President's warrantless surveillance program, to include the legal basis of that program. The Senate bill had no such provision.
- Ongoing Court Review: The House builds upon the Senate approach by confirming that the granting the FISA court the discretion to conduct reviews of minimization procedures and declares that the bill imposes no limits on the scope of the court’s ongoing review of its orders. This approach preserves the court’s discretion and responsibility to conduct these reviews, as they are needed.
- Common-Sense Congressional Oversight: The House bill requires regular congressional reporting and oversight to both the Judiciary and Intelligence Committees, and provides a sunset in December 2009 (at the same time as the PATRIOT Act) so that changes can be made if necessary.
Preserving Established FISA Laws
- Exclusivity: The House bill reiterates that FISA remains the exclusive means of conducting foreign intelligence surveillance, and requires explicit statutory authorization for any means of surveillance outside of FISA. The Senate bill had no exclusivity provision.
- Definition of Electronic Surveillance: Unlike the Senate bill, the House bill does not modify FISA's definition of "electronic surveillance" – it simply creates a new authority under FISA. The Senate bill created a complex carve-out of that definition to allow these new authorities to be exempt from FISA generally.
Preserving the Rule of Law in Pending and Future Lawsuits
- Like RESTORE, the House bill rejects retroactive immunity for participation in the President’s warrantless wiretapping program. It is only fair to allow defendants to argue that they are already immune under existing law, so the House provides a way for them to defend themselves in pending and future lawsuits notwithstanding the Administration’s assertion of the state secrets privilege. Courts will be able to protect secret information through well-established security procedures in FISA. The companies will no longer be in the “catch-22” of being unable to proffer evidence that they believe establishes immunity under existing laws.
- Unlike the Senate bill, the House proposal provides protections against lawsuits for compliance with valid authorizations under the Protect America Act for the period between the expiration of that law (but not the underlying authorizations) and the enactment of more lasting FISA reform legislation.
A side-by-side comparison of the Senate Bill and the Revised House Bill>>
Read the text of the amendment>>
