This vote was on passing a bill that would amend the Foreign Intelligence Surveillance Act of 1978 (commonly abbreviated FISA) to expand the authority of the U.S. Attorney General to conduct time-sensitive surveillance, without a warrant, of those suspected of being foreign terrorists. The bill’s provisions would end (or “sunset”) in six months, giving Congress a small window of time in which to work out the details of a larger FISA overhaul bill.
A top priority for President Bush, the measure is intended to eliminate what the administration has characterized as hitches or gaps in the FISA law, which created a special court to authorize wiretaps on foreigners. The most significant stumbling block has to do with the way modern-day communications technology works (many communications that are held between two entities in foreign countries are actually intercepted inside the United States, which had created a host of legal questions). The bill is also intended to address extra limitations placed on surveillance as a result of an earlier court ruling.
The bill would allow the administration to immediately begin conducting warrantless wiretaps on foreign targets. The bill would allow intercepts of communications within the United States as well, which many Democrats dislike. The bill also would require the attorney general to develop procedures for how they would collect that information. Those procedures would be subject to approval by the FISA court.
The issue of warrantless wiretaps came to a head in 2005 when a series of news reports revealed that the administration had used an executive order to circumvent the FISA courts and collect information about Americans, without a warrant, by petitioning telecommunications providers for phone records and more. That resulted in a firestorm of controversy over balancing the government’s need to collect time-sensitive intelligence information from terrorist targets, and the public’s right to privacy and due process.
A competing bill (S 2011) was introduced as an alternative, but only at the last minute. John Rockefeller, D-W.Va.,, chairman of the Senate Intelligence committee and sponsor of the Democratic bill, said it “has guidelines in place to address the concerns of many, including our intelligence officials, that surveillance of foreign targets not inadvertently result in the reverse targeting of Americans and their communications based on innocent communications swept up between Americans and individuals overseas.” In essence, the two bills are largely similar, except the Democratic measure would make it more difficult to conduct telephone surveillance of an American citizen without a warrant.
However, under intense pressure from the White House to act quickly to bridge these gaps in surveillance law to stave off more terrorist attacks, the Democratic leadership allowed the short-term bill Republican to go forward, vowing to revisit the issue with a longer-term bill when this bill expired in six months.
“With all respect to my colleagues, I plead with everyone, let us not strive for perfection. Let us put national security first. Let us understand if this passes, as I pray it will, and the President signs it, as I know he will if it passes both Houses, we are going to have 6 months to reason together to find something better. If we leave Washington for August recess without closing this gap in our Nation’s intelligence capabilities at a time of war, it will be quite simply a dereliction of duty by this Congress. It will be a failure to uphold our constitutional responsibility to provide for the common defense,” said Joseph Lieberman, I-Ct.
In the end, some Democrats said they voted for both versions of the bill, hoping that one would be able to reach the 60-vote threshold set by the Senate for passage. Normally, a simple majority of votes is all that is needed to consider a bill passed. But in this instance, the Senate decided to set the threshold at 60 votes (out of a possible 100 – a large margin in the Senate). This was to ensure that whatever passed would do so by a filibuster-proof margin. Filibusters – where one senator holds up floor action through a marathon session of talking – require 60 votes to shut down.
The Senate passed the bill by a vote of 60-28. Every Republican present voted for the measure. Of Democrats present for the vote, 27 voted against the measure, and 16 voted for it. The end result was that the Senate passed a bill that would expand the authority of the federal government to conduct surveillance of suspected foreign terrorists, including American citizens, without a warrant. The bill would apply for six months.