Deal Struck to Extend FISA 15 Days
Congress and the White House struck a compromise Tuesday to extend 15 days an electronic surveillance law set to expire Friday. The deal came as the House prepared to adjourn for a three-day retreat, making congressional approval impossible by the original deadline. The House passed the extension by voice vote. It goes to the Senate, where passage is expected. The White House put its blessing on the 15-day extension early Tuesday, House leaders said.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“This extension will give us time to consider responsible FISA reform in both houses of Congress,” said House Judiciary Committee Chairman John Conyers, D-Mich. Work on the Foreign Intelligence Surveillance Act began early last year but bogged down in August primarily over the telecom immunity provision. The Protect America Act was adopted as a temporary measure to give lawmakers time to work out a permanent bill.
But progress has been slow. The House rejected immunity for telecom providers in its bill (HR-3773), and the Senate is deeply divided over a Senate Intelligence Committee measure (S-2248) that provides immunity. S-2248 reflects a negotiated agreement with the White House and the Senate Intelligence Committee, but its immunity provision was rejected in the Senate Judiciary Committee. The Senate failed to approve two procedural steps Monday that would curtail debate and bring S-2248 to a vote, or halt debate and grant a one-month extension.
House leaders said they can’t properly consider immunity unless they have access to the classified documents that the Senate reviewed in writing S-2248. “Our committees have asked to see the legal documents, but we were only offered this access last Friday,” said House Majority Leader Steny Hoyer, D-Md. Those documents need close review before the House can decide whether immunity is “merited,” Hoyer said.
Before agreeing to the extension, the White House had been adamant that President Bush would veto any bill other than S-2248. He raised the point in his State of the Union speech while discussing anti-terrorism policy. “Congress must pass liability protection for companies believed to have assisted in the efforts to defend America,” Bush said. “We've had ample time for debate. The time to act is now,” he said. Bush told Congress that if “you don’t act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger.
But prominent Democrats and some public policy advocates disagree. If the Protect America Act expired, the law would revert to FISA, enacted in 1978. Under it, telecom companies wouldn’t have immunity from lawsuits challenging their alleged participation in the post-Sept. 11 surveillance program. But surveillance wouldn’t stop as long as warrants were obtained lawfully, said Gregory Nojeim, director of the technology project at the Center for Democracy & Technology.
“Nothing would change” if the temporary law expired, Nojeim said. “There has been a lot of bluster about what would happen if the law expired,” he said, adding that FISA would allow the government to lawfully continue surveillance already begun under the law and begin targeting new suspects. The threat to security that Bush said lurks is a “tempest in a teapot,” he said, aimed at forcing Congress to give immediate telecom immunity.
“FISA does not expire on Friday -- only the hastily cobbled together Protect America Act amendments to FISA do,” said Rep. Jane Harman, D-Calif., a member of the Homeland Security Committee. “This country will not go dark on Friday; our government has aggressively used surveillance tools and, in the past year or so, secured warrants in compliance with FISA,” she said. “Those warrants do not expire on Friday.”
Republicans accuse Democrats of stalling on S-2248 so they can amend it. Senate Minority Leader Mitch McConnell said Tuesday Republicans would agree to consider some amendments. “I know those discussions are ongoing and hopefully we can begin to have some votes,” McConnell said. “But we do not have the time to rebuild amendment by amendment a Judiciary Committee version that a bipartisan majority of the Senate has already defeated. And it wouldn’t become law even if we passed it.” Negotiations over those amendments continued at our deadline.