FISA Court Restoration Bill Almost In The House

[Note for NZ readers: In the U.S. there is no Opposition. There’s a majority party and a minority party. The majority party gets the chairmanship and control of the committees; the minority party equivalent of the chair is called the ranking member.]

On Wednesday, the House Judiciary Committee held a mark-up session to fine-tune H.R. 3773, the RESTORE Act, before it goes to the floor. It will also be marked up by the House Intelligence Committee. The acronym stands for Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective.

The RESTORE Act seeks to reverse some of the inroads made by August’s Protect America Act into the protections U.S. persons were granted by the 1978 Foreign Intelligence Surveillance Act (FISA).

In his opening remarks, Rep. Conyers [D-MI], the Chair, summarized the Democrats’ view by saying that six years ago, the Administration decided unilaterally to engage in warrantless wiretapping and that two months ago, the Administration forced the Congress to accept another statute (the Protect America Act) that gutted the power of the FISA Court.

The ranking member of the committee, Lamar Smith [R-TX], countered that investigations post-9/11 had shown that the need to get FISA Court warrants to conduct surveillance in certain circumstances reduced the intelligence community’s collection of foreign intelligence by two-thirds, and that requirements in the RESTORE Act would further bog down the IC.

Opening statements were also taken from the chairs and ranking members of two subcommittees of the full committee. The ranking member of the Constitutional Subcommittee, Trent Franks [R-AZ], went even further than Smith, declaring that the RESTORE Act extends fourth amendment rights and protections to Osama bin Laden, and will result in “more threats and less security for partisan gain.”

The partisan gain he refers to is the Democratic Party’s need to placate the vocal civil rights and privacy protection lobbies within their likely support base. At the same time, they need to counteract the Republicans’ easy task of invoking 9/11 at every turn. It was only the Democrats’ numerical dominance of the committee that won the day for them as they considered the offered amendments. The bill will go to the House floor next week.

Also at issue in discussions about H.R. 3773 is whether retroactive immunity from lawsuits should be given to telecoms companies that allegedly complied with requests to turn customers’ call records over to the intelligence community. Again, votes on amendments to the wording of the bill split along party lines.

But on one amendment, at least, Dan Lungren [R-CA] broke rank with his colleagues and voted with the Democrats. It was on an amendment to do with restoring the phrase “primary purpose” to FISA, which had been changed to “significant purpose” by the PATRIOT Act. The significant purpose of a request for a warrant is what determines whether an agency goes to a district court or a FISA court to authorize surveillance.

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Lungren (above) had been making such sweepingly broad points about not “giving the judiciary the upper hand” in matters of national security that it was surprising to see him take an independent stand on such a fine—but important—point. Daniel Lungren was California’s Attorney-General from 1991 to 1999.

President Bush’s response to the committee’s work, given at a press conference held only an hour into the lengthy mark-up session, was to issue an ultimatum.

“The final bill must meet certain criteria: It must give our intelligence professionals the tools and flexibility they need to protect our country. It must keep the intelligence gap firmly closed, and ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And it must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.

“When Congress presents me with a bill, I will ask the Director of National Intelligence whether it meets these criteria. And if it does, I will sign it into law.”

The Leader of the House, Steny Hoyer [D-MD] issued a response to the President’s statement, saying that the RESTORE Act rectifies the excesses of the Protect America Act, “while addressing the intelligence gap stated by the DNI and ensuring that the intelligence community has the tools it needs to go after terrorists.”

With regard to the immunity question, Hoyer said it would be “grossly irresponsible for Congress to immunize companies without knowing whether their conduct was legal or not.” Throughout this stand-off, Democrats have maintained that they have never been given the information they’ve requested of the Administration in order to clarify whether the telecommunications companies were complying with a properly legal request for the information they allegedly supplied about their customers’ calls.

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