House passes FISA amendments without telecom immunity

By a vote of 227-189, the US House of Representatives yesterday passed its version of the RESTORE Act, in an attempt to strengthen foreign intelligence surveillance restrictions while preserving individuals' rights, including the right to sue.

H.R. 3773 seeks to amend the Foreign Intelligence Surveillance Act (FISA), with the principal aim being to prevent the Justice Dept., the CIA, or any other intelligence-gathering source from obtaining communications from "non-United States persons" without a warrant from an exclusive FISA court.

The House's final draft of the Act was without the clause that President Bush repeatedly and publicly stated would be required in order for him to sign it into law: the provision that grants telecommunications companies immunity from prosecution for having cooperated with the government in surveillance activities that the bill may now deem unlawful.

"Most significantly, the bill does not provide immunity to telecommunications companies that participated in the President's warrantless surveillance program," House Speaker Nancy Pelosi (D - Calif.) stated on the House floor yesterday, just prior to the final vote. "We cannot even consider providing immunity unless we know exactly what we are providing immunity from, and even then, we have to proceed with great caution."

Meanwhile, the Senate Judiciary Committee pushed forward its version of the same language by a 12-7 vote, but only after removing the immunity clause that had previously been inserted and approved by the Intelligence Committee. Judiciary Committee Chairman Patrick Leahy (D - Vt.) stated that it will now be up to the full Senate to debate the matter of telecom immunity.

The immunity matter has been detracting from the key provision of the bill: that neither the Attorney General nor the Director of National Intelligence (representing the CIA and all other intelligence gathering branches of the government) may acquire the content communications between "non-United States persons" outside the US without an emergency authorization, which may then be extended for a one-year period through a court order. Amendments added by the House make the FISA law the exclusive channel through which these executive officials may act.

"The legislation also makes clear the principle of exclusivity," Speaker Pelosi stated yesterday, "that determines the collection of intelligence. It makes clear that FISA is the exclusive means for conducting electronic surveillance to gather foreign intelligence. The government must seek approval from a FISA court. So we're talking about the Congress of the United States passing legislation, as it did in the late '70s...in light of the new technologies and new realities in the world, and recognizing the authority of the third branch of government: the courts."

The White House issued a statement following the House vote, characterizing its action as an attempt to remove terrorism-fighting tools from its grasp.

"This evening House Democrats passed legislation that would dangerously weaken our ability to protect the nation from foreign threats," White House spokesperson Dana Perino stated. "The House Democrats' bill...fails to give our intelligence community the tools it needs, and it fails to protect companies facing massive lawsuits for allegedly stepping up and answering the nation's call for help after the 9/11 terrorist attacks. If this bill is presented to the President in its current form, the Director of National Intelligence and the President's other senior advisers will recommend that he veto it."

Such a recommendation would also be made, Perino added, if the Senate's post-Judiciary version of the bill also passes.

With some Senate Democrats, including Jay Rockefeller (D - W.V.) supporting the immunity clause, the post-Judiciary version of the bill may face a tough floor battle. But that battle may have to wait until after the Thanksgiving break, and then find an open slot during the brief but jam-packed early December session, prior to the holidays.

Even then, perhaps despite the outcome of the immunity debate, the President may still be waiting to add just one letter: X.