The Political Chase

Debate on FISA Amendment S.2248

The Senate has begun debate on Senate Intelligence Committee’s bill to amend FISA. The Intelligence Committee’s bill, unlike the amendment proposed by the House Intelligence Committee, provides amnesty to the telecommunications companies and the Bush administration for their illegal wiretapping activities that began in 2001.

The bill being debated, S. 2248, is without doubt one of the most important issues Congress has ever debated. The provisions of the Fourth Amendment and the very principles of the Rule of Law are at stake. If Congress passes this bill, they will side with the president’s view that existing law is meaningless; if one wields enough power, all that is necessary is to lobby Congress sufficiently with campaign contributions and fear-mongering, and they will grant absolution for countless acts of lawbreaking.

Majority Leader Reid, a supporter of the bill, has scheduled a vote for 12:00 PM ET today. Sen. Chris Dodd is expected to filibuster the bill. I will provide additional updates as the session progresses.

Following is a summary of the bill. A full copy of the bill is available here, and a complete history of the bill is available here.

Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or FISA Amendments Act of 2007 - Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to authorize the Attorney General (AG) and Director of National Intelligence to jointly authorize, for periods up to one year, the targeting (electronic surveillance) of persons located outside the United States to acquire foreign intelligence information. Requires specified targeting and surveillance minimization procedures to be followed, with Foreign Intelligence Surveillance Court (Court) review of such procedures.

States that chapters 119 (Wire and Electronic Communications Interception and Interception of Oral Communications) and 121 (Stored Wire and Electronic Communications and Transactional Records Access) of the federal criminal code and FISA shall be the exclusive means by which electronic surveillance and interception of domestic communications may be conducted.

Requires the AG to submit semiannually to the congressional intelligence committees copies of any orders of the Court or the Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of FISA.

Revises generally provisions concerning the application for, and issue of, Court orders. Allows the AG to authorize the emergency employment of electronic surveillance under certain circumstances, including: (1) determining that an emergency exists; (2) informing a Court judge of such determination; and (3) applying for a Court order authorizing such surveillance. Provides similar authority an outlines similar procedures for the emergency employment of a physical search.

Requires the AG, after authorizing the installation and use of a pen register or trap and trace device on an emergency basis, to apply to the Court for an authorization order within 168 (current law requires 48) hours after the emergency installation and use.

Authorizes the Court to sit en banc when: (1) necessary to secure or maintain uniformity of Court decisions; or (2) the proceeding involves a question of exceptional importance.
Provides limitations (and preempts state law) on civil actions against electronic communication service providers and persons providing assistance in connection with an intelligence activity.

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