FISA Heads for a Battle Royale in the Senate

Legislation to amend the Foreign Intelligence Surveillance Act (FISA) has been a political football for months as both sides have sought to score points at the expense of the other on security and constitutional issues. The battle has gone on so long that authorization for the Terrorist Surveillance Act (TSA) has expired -- a problem that many in the intelligence community believe is hampering our ability to spy on foreign enemies. But last week, a compromise was hammered out that may lead to a solution that addresses at least some of the concerns.

As with any compromise, there is give and take from both sides in order to achieve a balance. In the case of the FISA legislation, the balance was a delicate one between national security and protection of civil rights. On June 20th, the House passed the much needed and anticipated FISA reform legislation with a 293 to 129 vote. Whether this important legislation becomes law depends on the vote of the Senate this week. This has activists and groups like the ACLU pushing for people to contact their Senators and tell them to vote against it.

There is one element in this compromise that has the ACLU and many on the left side of the political spectrum upset; they don't believe their representatives truly served their interests in this compromise. They do not like the fact that, in order for this legislation to pass, telecom companies were granted retroactive immunity from lawsuits for cooperating with the TSA -- the National Security Agency's surveillance and intelligence gathering operation at the heart of our ability to head off another potential 9/11.

For the sake of brevity our summary will begin with the NSA terrorist surveillance program after 9/11.

Prior to 9/11 the NSA had difficulty passing leads garnered from overseas about terrorists within the United States to the FBI. There were many burdensome rules that prevented the sharing of information among various intelligence groups. President Bush believed that tearing down the wall blocking information sharing could make America more successful at preventing attacks such as 911.

After 9/11 the Chairmen and Vice Chairmen of the intelligence committees in both the House and Senate were briefed on changes to the existing surveillance procedures that tore down many of the barriers preventing information sharing. The NSA had always been able to gather intelligence on foreign terrorists by monitoring overseas phone calls. One change presented was the addition of monitoring phone calls and other electronic communications to and from the U.S. to suspected terrorists overseas. But one detail that greatly complicated things was that of warrants.

The governing legislation for the TSA was the FISA which requires that the government get a warrant for any surveillance of individuals in this country. Given that details of the program have not been forthcoming, an enormous amount of confusion has arisen over whether or not warrants should have been attained before any attempt to intercept calls originating in the US was made -- even if the person on the other end was overseas.