Constitutional Law

Senate Protects Telecom Companies, Passes Surveillance Amendments

On Tuesday, the Senate approved the FISA Amendments Act of 2008, a six-year extension of a temporary surveillance statute that included a provision to stop lawsuits against telecommunications companies that aided President Bush's warrantless surveillance program, closing what the Boston Globe called the "last forum in which critics have challenged the operation's legality." The Senate also narrowly rejected an amendment that would have made the FISA statutes the exclusive legal basis for presidentially-authorized surveillance.

All of this occurred in the context of the expiration of the PROTECT America Act of 2007, the "hastily adopted" legislation set to expire on Saturday that some say "gave the government unprecedented authority to spy on Americans." The House passed competing legislation to the FISA Amendments Act last year, known as the RESTORE Act, which extended portions of the PROTECT America Act but did not grant retroactive telecom immunity and is generally viewed as more protective of civil liberties.

Even though a disagreement over language and the House's adjournment will prevent Congress from passing a successor to the PROTECT America Act before Saturday, its expiration will have "little practical effect on intelligence gathering," according to the Washington Post's Eric Lichtblau. He notes that intelligence officials will continue to be able to intercept communications for a year after the initial authorization to monitor a terrorist group, and the government can obtain surveillance of newly identified terrorist groups by obtaining a warrant under the traditional FISA framework.

The White House had threatened to veto the House's efforts to pass a temporary extension of the PROTECT America Act, which Wired called "a move clearly intended to push the House to adopt the Senate version verbatim."

Additional Resources
ACS: The National Security Agency's Domestic Spying Program (article)
ACS: Domestic Surveillance and the Rule of Law (audio)
ACS: Warrantless Domestic Surveillance: Its Roots and Where We Go From Here (transcript)
ACS: Building Checks and Balances for National Security Policy: The Role of Congress (video)
ACS: The Challenges of Gathering Intelligence and Conducting Investigations (video)
ACS: Restoring the Rule of Law (video)
ACS: Separation of Powers: Restoring the Balance Among the Branches (video)
CRS: Overview of FISA (2007)
CRS: Overview of Protect America Act of 2007's Modifications to FISA (2007)
CRS: Comparison of competing bills to amend FISA (2007)
ACS: Background Resources
ACLU: FISA Page
Center for National Security Studies: FISA Page (legislative history)
Electronic Frontier Foundation: FISA FAQ
Electronic Privacy Information Center: FISA Page
Federation of American Scientists: FISA Page (legislative and litigation history)

Full post as published by ACS Blog on February 15, 2008 (boomark / email).