On June 20, the House passed the FISA Amendments Act of 2008 (H.R. 6304) by a vote of 293 to 129. The bill grants retroactive immunity to telecommunications companies and expands government surveillance powers of American citizens without judicial approval. In return for these provisions, the legislation achieves a few modest improvements, including establishing that FISA is the exclusive means by which surveillance may be conducted. The bill also calls for some increased oversight with a review of the wiretapping program by the inspector general of the Department of Justice.
The legislation has received strong opposition from public interest groups, many of which have mounted campaigns to oppose the legislation. Groups like the American Civil Liberties Union and the Center for Democracy and Technology have urged the Senate to reject the legislation. OMB Watch has also opposed the bill.
Online netroots have also placed considerable pressure on Sen. Barack Obama (D-IL), presumptive Democratic presidential nominee, to reverse his stated support for the bill. Online petitions have been launched, and a group has been formed on Obama's campaign site to urge him to oppose the bill. The effort is now the largest single group listed on the site, with more than 21,000 participants. Originally, Obama had stated he would support a filibuster of immunity for telecommunications companies.
Interestingly, just days before the Senate votes on the FISA bill, a court issued a ruling on one of the cases against the NSA wiretapping program that runs counter to arguments used to justify the compromise bill. Despite the fact that Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California dismissed Al Haramain v. Bush in the July 2 ruling, the Electronic Frontier Foundation makes a strong case for how it still goes a long way to undermine several key arguments for the FISA bill. The case was dismissed, for the time being, because the plaintiff failed to adequately demonstrate it had been injured. However, the ruling rejected the expansive view of executive authority to go around FISA and held that FISA preempts the state secrets privilege. The decision also fully demonstrates the ability of courts to handle the questions of immunity and security involved in this issue.
Despite the opposition and the recent court decision, however, it is expected that the Senate will pass the FISA bill when brought to a vote. In February, the Senate passed, by a vote of 68 to 29, an earlier version of the bill (S. 2248), which granted immunity without any of the improvement provisions included in H.R. 6304. Another indicator that the FISA bill will likely pass is that on June 25, the Senate voted overwhelmingly (80 to 15) to limit debate on the legislation.
Only three amendments are being considered:
- Sens. Russ Feingold (D-WI) and Christopher Dodd (D-CT) have offered an amendment to strip out the immunity provision.
- Sen. Jeff Bingaman (D-NM) has offered an amendment that would place all pending lawsuits on hold until 90 days after Congress receives the inspector general report on the wiretapping program, which is required in the FISA bill.
- Sen. Arlen Specter (R-PA) has offered an amendment to require dismissal of lawsuits unless a federal district court found that the assistance of telecommunications companies violated the Constitution.
The Senate is requiring 60 votes for adoption of any of the amendments, so they all face a difficult hurdle.