Senate passes FISA bill after yearlong dispute

By Chris Strohm, CongressDaily

The Senate approved by a 69-28 vote Wednesday a sweeping revision of the Foreign Intelligence Surveillance Act, giving the Bush administration long-sought spying powers and legal protections for telecommunications companies that have helped the government conduct electronic surveillance on U.S. residents without warrants. Enough Democrats joined Republicans to defeat three amendments to the bill that would have rolled back legal protections for the telecom firms. Presumptive Democratic presidential nominee Sen. Barack Obama of Illinois, voted for all three amendments, while Arizona Sen. John McCain his presumptive Republican rival for the White House, was absent. President Bush is expected to sign the bill, ending nearly a year of bitter partisan wrangling in the House and Senate over modernizing FISA.

Under the bill, the government would not need to obtain warrants to monitor foreigners whose phone or e-mail conversations pass through or are stored by U.S. communications hubs. The government also would not need warrants to monitor the communications of U.S. residents who come into contact with suspected foreign terrorists as long as the U.S. resident is not the target of surveillance and his or her communications are minimized. Individual warrants would be needed if the target of surveillance is a U.S. resident or, for the first time, an American traveling abroad. The administration would have to submit its surveillance procedures to the secret FISA court for approval before surveillance could begin, except under exigent circumstances.

The bill would give telecom firms retroactive legal immunity from civil lawsuits if they can show a federal district court judge that they received written directives from the Bush administration that the National Security Agency's warrantless electronic surveillance program was authorized by Bush and determined to be legal. A Senate Intelligence Committee report made clear that the firms received such directives, essentially guaranteeing that about 40 civil lawsuits against them will be dismissed. In a 66-32 vote, senators defeated an amendment by Sens. Russell Feingold, D-Wis., and Christopher Dodd, D-Conn., that would have stripped the immunity provision from the bill. It needed 50 votes to pass. Senators also defeated, 61-37, an amendment by Senate Judiciary ranking member Arlen Specter, R-Pa., that would have required the district court to determine if the warrantless surveillance program was constitutional before granting immunity to the companies. It needed 60 votes to pass. On a 56-42 vote, the Senate also rejected an amendment from Sens. Jeff Bingaman, D-N.M., Robert Casey Jr., D-Pa., and Specter that would have stayed the lawsuits against the companies until Congress could review the findings of a comprehensive inspectors general report on the warrantless surveillance program. It needed 60 votes to pass. Senior Bush administration officials had said they would recommend the bill be vetoed if any of the amendments were approved. The bill includes language making FISA the exclusive means under which the administration can conduct surveillance. Additionally, all provisions in the bill will sunset at the end of 2012.