Bill: HR 6304 — PL 110-261

Status: Democrats’ efforts to confront President Bush over electronic surveillance laws ended abruptly in July, with Congress clearing a White House-backed bill overhauling the Foreign Intelligence Surveillance Act (FISA).

Synopsis: Bush had made a FISA rewrite a legislative priority. His main objectives were to allow enhanced executive branch spying powers and provide retroactive legal protection for telephone companies that had participated in a warrantless wiretapping program conducted by the National Security Agency (NSA).

Unable to agree on a long-term overhaul, Democrats consented in August 2007 to a six-month law (PL 110-55) that effectively authorized the program as Bush sought. The House passed a more lasting FISA bill (HR 3773) in November 2007, but the Senate still had not completed its own version by February 2008, when the temporary law was set to expire. Democrats indicated they needed more time to finish the long-term bill, and Bush reluctantly agreed to a 15-day extension (PL 110-182). The Senate then passed its version of a more lasting FISA overhaul.

The chief differences between the House and Senate versions of the bill concerned retroactive immunity for the telecommunications companies, and rules for authorizing electronic surveillance. The Senate bill included retroactive immunity provisions; the House version did not. The Senate measure would have allowed warrantless surveillance of foreign targets even if they were communicating with someone in the United States. The House version would have required the administration to apply to the FISA court for an order permitting spying on a large number of foreign targets that might be communicating with people in the United States.

With those differences to resolve, Democrats argued for another extension, against Bush’s wishes. But every House Republican combined with a number of Democrats — some who opposed any extension, and some who sided with Bush — to reject the extension (HR 5349).

The temporary law expired, and Republicans initially refused to negotiate with Democrats on a compromise, insisting that the Senate bill, favored by Bush, was the only acceptable legislation.

In March, House Democrats tried to split the difference over retroactive legal immunity, sending the Senate a version of the bill that would have allowed the telecommunications companies to use classified information in civil court to defend themselves — something the administration had sought to block. The bill would have permitted a judge to review such evidence in private without showing it to the plaintiffs who sued the companies. Republicans voted against it, arguing that only full immunity would protect the companies.

But pressure to enact a lasting FISA revision was mounting. Republicans wanted legislation in place before August, when sweeping surveillance orders issued under the temporary law would begin to expire. Conservative House Democrats warned they might back GOP efforts to bring the Senate bill to the floor, which would have trumped any attempt by the House Democratic leadership to challenge Bush. Additionally, many Democrats privately said they were worried that if a law was not passed by August, Republicans would claim on the campaign trail that Democrats were exposing the country to possible terrorist attacks.

By late June, negotiators reached a deal. The new legislation (HR 6304) didn’t explicitly grant retroactive liability protection, but it required courts to dismiss all existing lawsuits against the companies if there was “substantial evidence” they had received written assurances that the program was legal and authorized by the president.

A Senate Select Intelligence Committee report on an earlier version of the legislation detailed the assurances that the companies received from the Justice Department and the White House. Aides and lawmakers consider the dismissal of the lawsuits a virtual certainty.

The bill authorizes warrantless surveillance of foreign targets who may be communicating with people in the United States as long as the government is not intentionally targeting U.S. citizens, although it requires additional court and congressional scrutiny of how the program is implemented and made a few other concessions to Democrats.

Legislative Action