Counterterrorism and the State. Dorle Hellmuth

White House did not budge. Instead, fully aware that Congress was preparing for its annual August recess, it stepped up the pressure in late July. Citing the recent National Intelligence Estimate on the heightened Al-Qaeda threat, DNI McConnell brought forward another, much shorter legislative draft that left out controversial issues, like immunity from lawsuits for telecommunications companies. On August 1, 2008, Senate Minority Leader Mitch McConnell (R-Ky.) introduced a bill based on the shorter draft.²⁹⁶ Most controversial and unacceptable to many Democrats, under the proposal the attorney general and the DNI would have sole responsibility for authorizing warrantless wiretaps. These would apply to all foreign communications, even those involving persons in the United States. Opposed to these sweeping powers, a compromise plan put forth by the chairs of the House Intelligence and Judiciary Committees foresaw a central role for the FISA Court. The court would continue to issue warrants for foreign-to-domestic communications, albeit much broader ones under relaxed rules.²⁹⁷ In other words, Democrats were more willing to support warrantless spying on communications involving Americans if one party was a terrorist suspect.²⁹⁸ The compromise plan did not get much traction. Amid the bargaining, news about a secret FISA ruling earlier in the year confirmed the DNI’s assertions about convoluted bureaucratic processes in place for purely foreign communication that merely happened to be transiting through the United States.²⁹⁹ Soon after, the White House conceded to a sunset clause that would make the act temporary and thus more acceptable to moderate Democrats. Finally, President Bush also stepped up the pressure, threatening to hold Congress in session unless it supports “a bill I can sign.” That same day, the Senate passed the White House-endorsed bill, virtually unchanged.³⁰⁰ The Senate adjourned after the vote on August 4, essentially forcing House lawmakers to follow suit or else leave them vulnerable to charges that they had jeopardized the national security of the United States.³⁰¹ The following day the bill was agreed to in the House as well. On August 5, 2007, President Bush signed the 2007 Protect America Act.

      At the center of the reform was the new definition of “electronic surveillance.” FISA would no longer apply to communications (aka electronic surveillance) of persons “reasonably believed” to be located outside the United States, even if they were in contact with U.S. citizens inside the country. In a major change, it would now be up to executive branch officials (the DNI and Attorney General), rather than the FISA Court, to authorize acquisition of such foreign intelligence information for up to one year. There would be no audits by the DOJ Inspector General. Instead, the Attorney General was to report to Congress twice a year. The FISA Court role would be reduced to reviewing the procedures to determine that operations do not constitute electronic surveillance and that persons were indeed outside the United States.

      Absent the sunset clause, the White House got its way. A close look at the act revealed that the administration had been granted those same warrantless wiretapping powers it had previously seized unilaterally as part of the secret NSA program. Parts of the draft would even go beyond the NSA program, as surveillance targets were no longer required to have terrorism links. Democrat lawmakers grudgingly approved the bill under the condition that the law was to sunset after 180 days, on February 1, 2008.

      In the meantime, Congress got ready to pass a permanent FISA bill that could replace the temporary arrangement. House representatives moved quickly to pass their version of the bill in mid-November 2007. However, things were more complicated in the Senate, where two bills, reported out of the Judiciary and Intelligence Committees, competed. As the Senate failed to come to a decision, both houses, on January 29, 2008, decided on a fifteen-day extension of the Protect America Act to give lawmakers more time to evaluate, approve, and go to conference on the various FISA reform bills.

      The Senate eventually passed its FISA reform bill on February 12, 2008. Not surprisingly, White House and senior administration officials, among them DNI Michael McConnell, strongly endorsed the bill, which contained many of the expired Protect America Act provisions.³⁰² For the same reason, the Senate bill did not receive the necessary support in the House. Despite President Bush’s warning that the House needed to pass the Senate bill “immediately” as the “failure to pass the bipartisan Senate bill would jeopardize the security of our citizens,” the Democrat-led House refused.³⁰³ Bush, in return, refused to grant another (twenty-one-day) extension. The Protect America Act expired on February, 16, 2008.

      A new House version of the Senate bill passed in March was also opposed by both Republican senators and President Bush, who threatened to veto it.³⁰⁴ Most of the criticism focused on the fact that the House bill did not grant retroactive immunity to companies that assisted in the secret NSA program—which the Senate version accounted for.³⁰⁵ Furthermore, the FISA Court would play a much larger role in granting prior approval and certification of, for example, minimization and targeting procedures involving surveillance of non-U.S. persons abroad. The House version also required an Inspector General audit and would further establish a commission to look into the warrantless NSA program. Finally, it imposed a sunset date that was less than two years away (December 31, 2009)—as opposed to the Senate bill, which listed December 31, 2013, as sunset date.

      However, House representatives switched gears three months later. A House bill that was passed on June 20 did afford those telecommunications companies that assisted the Bush administration in the warrantless interception of emails and phone calls “blanket immunity,” granting retroactive liability protection to these companies. In addition, it granted future protection from lawsuits to telecommunication service providers, which would also be able to challenge government requests before the FISA Court. The Senate followed suit and approved the bill three weeks later, on July 9, 2008. President Bush signed the FISA Amendments Act of 2008 into law the same day.³⁰⁶

      Based on the 2008 FISA Amendments Act, the government would need individualized, FISA Court-approved warrants for any surveillance that targeted US citizens—whether they were located on domestic soil or abroad, and even if their communications involved non-US persons overseas. Purely domestic-to-domestic communications, even among non-U.S. persons inside the United States, would require a warrant as well. Emergency provisions allowed the DNI and the attorney general to start surveillance without FISA approval, but the latter had to be retrieved within a seven-day time frame.

      However, FISA warrants were no longer needed to intercept communications of non-U.S. persons “reasonably believed” to be located outside of the country, even if their phone calls or e-mails passed through the United States. While the DNI and Attorney General would be responsible for determining what constitutes “reasonably abroad,” the role of the FISA Court would be limited to reviewing the procedures used to determine whether persons were indeed outside the United States. These procedures would be renewed annually.

      The FISA Amendments Act further reiterated that the legislation served as the “exclusive means” by which the president is authorized to conduct foreign intelligence surveillance on U.S. soil. In other words, all foreign intelligence surveillance is supposed to be governed by FISA. To ensure this, the act enhanced oversight powers of both Congress and the inspectors general of the DOJ and the intelligence agencies. The latter would be responsible for assessing surveillance measures, including the number of surveillance cases requested and conducted, U.S. citizens targeted, and overall efforts designed to minimize the scope and intrusiveness of the methods. In addition to the intelligence committees, the judiciary committee would also oversee surveillance programs and measures.

      Critics argued that the 2008 act essentially legalized most parts (at least those that were known to the public) of the NSA program. When comparing the March version, passed by both houses, to the final bill, it does appear that Democrat lawmakers, in control of both houses, did end up meeting many White House and Republican demands that were also reflected in the Senate versions of the bill.³⁰⁷ Reminiscent of the timing of previous political battles surrounding major counterterrorism reforms, the FISA reform coincided with another presidential election, the 2008 presidential campaign.³⁰⁸ Congressional leaders accused Bush and fellow Republicans of once again “trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack,”³⁰⁹ arguably, successfully so.

      At the same time, the 2008 FISA bill was consistent with Congress’s