Senate Passes Its FISA Bill, While House Rejects 21 Day Extension Bill

February 13, 2008. On February 12, 2008, the Senate passed its Foreign Intelligence Surveillance Act (FISA) reform bill (S 2248). On Wednesday, February 13, 2008, the House rejected a bill (HR 5349) to extend the Protect America Act (PAA) for another 21 days. The PAA is set to expire on Saturday, February 15, 2008.

Senate Action. On February 12, the Senate approved S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007". The vote was 68-29. All of the votes against S 2248 were cast by Democrats. All of the votes in favor of Sen. Chris Dodd's (D-CT) amendment (Amendment No. 3907) to delete the immunity title, which failed, were cast by Democrats. See, Roll Call No. 20.

President Bush hailed this as a "bipartisan" vote, notwithstanding the high statistical correlation between party affiliation on vote.

Early in the day, the Senate rejected a series of amendments, including one that would have removed language that provides immunity for companies that have cooperated with the government. See also, story titled "Senate Rejects Efforts to Remove Immunity Language from FISA Bill" in TLJ Daily E-Mail Alert No. 1,716, February 12, 2008.

Late on February 12, after the Senate approved its FISA bill, President Bush issued a statement. He said that the Senate bill "will ensure that our intelligence professionals continue to have the critical tools they need to protect the Nation."

He argued that the Senate's bill "provides a long-term foundation for our Intelligence Community to monitor the communications of foreign terrorists in ways that are timely and effective and that also protect the liberties of Americans. It will keep closed dangerous intelligence gaps that threatened our security. And this bill improves on the Protect America Act passed last summer by providing fair and just liability protection to those private companies who have been sued for billions of dollars only because they are believed to have done the right thing and assisted the Nation after the September 11th terrorist attacks."

Bush concluded that the House "now has an opportunity to put aside narrow partisan concerns and come together to pass this bipartisan bill and send it to my desk without delay."

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), stated in a release that "I had hoped that the Senate would incorporate improvements included in the House-passed RESTORE Act and in the bill reported by the Senate Judiciary Committee. It has not. I had hoped that the administration would work with us, but it has not. Instead, having gotten exactly the bill they want and the way they want it from the Intelligence Committee, they have threatened a presidential veto if any improvements are made."

He added that "Republicans voted lockstep to table the Judiciary Committee improvements and virtually lockstep against every individual amendment and improvement.  Worse, the Republican leadership has stalled action on the measure for weeks and continues to insist it is their way or no way.  Sadly, with the acquiescence of some on this side of the aisle, they have controlled the debate, the bill and the final result in the Senate." 

Gregory Nojeim, of the Center for Democracy and Technology (CDT), stated in a release after the Senate vote that "By rejecting telecom immunity, the House bill would ensure that telephone companies will have an incentive to insist on a court order before they tap the email and calls of Americans ... We urge the House of Representatives to stand by its stronger bill."

House Action. On February 13, 2008, the House rejected HR 5349 [LOC | WW], a bill to extend S 1927 [LOC | WW], the "Protect America Act", for another 21 days. The vote was 191-229. Republicans voted 0-195. Democrats voted 191-34. See, Roll Call No. 54.

The House did not vote on, or consider, the Senate's bill.

The House passed its bill to reform the FISA back on November 15, 2007. It is HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act".

S 1927 [LOC | WW] is the "Protect America Act". It was enacted into law in August of 2007. However, it has a six month sunset. The House and Senate passed, and President Bush signed, a bill providing for a two week extension of the sunset. The PAA is now set to expire on Saturday, February 16, 2008.

Rep. Steny Hoyer (D-MD), the House Majority Leader, stated on February 13 that "I support this 21-day extension. Here’s why: It represents progress toward a final measure to modernize the Foreign Intelligence Surveillance Act."

He argued that President Bush's demand that the House pass the Senate's bill is "absolutely untenable". He noted too that the President "is threatening to veto" the 21 day extension bill, HR 5349.

He continued that "we are declaring that we will not just take whatever legislation the Senate sends us and rubber-stamp it. We are declaring that this body has a prerogative and a role in making law. The bottom line is: responsible people in both chambers want an opportunity to work out the differences between the House and Senate bills."

He said that the RESTORE Act "modernizes the technologically outdated FISA statute, gives the intelligence community the authority to intercept critical foreign communications, and honors our constitutional principles".

Bush Speech. President delivered a speech at the White House on February 13. The White House press office also issued a related release urging the House to pass the Senate's bill.

Bush said that "At this moment, somewhere in the world, terrorists are planning new attacks on our country. Their goal is to bring destruction to our shores that will make September the 11th pale by comparison. To carry out their plans, they must communicate with each other, they must recruit operatives, and they must share information."

"Our intelligence professionals must be able to find out who the terrorists are talking to, what they are saying, and what they're planning", said Bush.

Bush referenced the 15 day extension of the PAA. He said that "the Senate has used this time wisely", but that the House has not.

He again defended immunity language in the Senate bill as "fair and just liability protections for companies that did the right thing and assisted in defending America after the attacks of September the 11th."

He continued that "In order to be able to discover enemy -- the enemy's plans, we need the cooperation of telecommunication companies. If these companies are subjected to lawsuits that could cost them billions of dollars, they won't participate; they won't help us; they won't help protect America. Liability protection is critical to securing the private sector's cooperation with our intelligence efforts."

Bush concluded that the "Congress has had over six months to discuss and deliberate. The time for debate is over. I will not accept any temporary extension." He added that "there is no reason why Republicans and Democrats in the House cannot pass the Senate bill immediately."

Later on February 13, the White House press secretary issued a statement regarding the House rejection of a further extension. "We commend the House for rejecting this misguided legislation that fails to provide a long-term foundation for our Intelligence Community to monitor terrorist communications quickly and effectively. In addition, this bill failed to provide liability protection for companies that did the right thing and assisted our efforts to defend America after the attacks of September 11. ... The PAA expires at the end of this week. The time for debate is over. The time for the House to act is now."

Presidential Candidates. Sen. John McCain (R-AZ) voted for final passage of S 2248, and against the Dodd amendment.

Sen. Barrack Obama (D-IL) missed the vote on final passage, but voted for the Dodd amendment. He stated in a release that he opposes putting "protections for special interests ahead of our security and our liberty. There is no reason why telephone companies should be given blanket immunity to cover violations of the rights of the American people -- we must reaffirm that no one in this country is above the law.

"We can give our intelligence and law enforcement community the powers they need to track down and take out terrorists without undermining our commitment to the rule of law, or our basic rights and liberties." Sen. Obama continued that "This Administration continues to use a politics of fear to advance a political agenda. It is time for this politics of fear to end. We are trying to protect the American people, not special interests like the telecommunications industry. We are trying to ensure that we don't sacrifice our liberty in pursuit of security ..."

Sen. Hillary Clinton (D-NY) missed the vote on final passage, and missed the vote on the Dodd amendment. However, she wrote in a release that she opposes the bill, and supports the Dodd amendment. She wrote that "I oppose the provision contained in the bill that grants blanket retroactive immunity to telecommunications companies that allegedly cooperated in the administration's warrantless wiretapping program. I believe granting retroactive immunity under these circumstances is wrong and undermines accountability."

She added that "Over the past seven years, the Bush Administration has blatantly and systematically disregarded Americans' civil liberties. It cannot be trusted to protect Americans’ privacy rights."