U.S. Rep. Adam Smith (D-Wash.) today voted for the FISA Amendments Act of 2008, a bipartisan compromise bill that provides intelligence agencies tools to conduct surveillance while protecting Americans' privacy rights.

"We can and must fight terrorism without sacrificing our most basic freedoms as Americans.   While not perfect, this compromise is a major improvement over both the Senate-passed bill and current law.  It gives intelligence agencies needed tools to conduct surveillance on foreign targets while protecting Americans' constitutional rights through judicial oversight and ensuring the President can never again go outside the law," Smith said.

The compromise bill contains a number of critical safeguards to protect civil liberties and prevent executive overreach.  The bill:

  • Ensures the President can never again go outside the law, by clarifying that the Foreign Intelligence Surveillance Act (FISA) and existing criminal statues are the exclusive means by which the government may conduct surveillance on U.S. soil.  The President justified his extralegal surveillance program by claiming the 2001 authorization to use force against terrorists provided the administration the authority to circumvent FISA.  This bill makes it clear that's not the case.
  • Clarifies that to conduct surveillance of a person in the U.S., or any U.S. citizen abroad, the government must first obtain an individual warrant from the FISA court based on probable cause.
  • Requires prior review and approval by the FISA Court of the targeting and minimization procedures used in foreign surveillance to ensure that U.S. citizens are not targeted and that any inadvertently intercepted communications are not disseminated.
  • Requires the Inspectors General of four key U.S. government agencies to conduct a review of the President's warrantless wiretapping program and provide those reviews to Congress.

The debate over surveillance laws emerged after September 11, 2001 as the need to conduct counterterrorism surveillance suggested that the 1978 FISA law needed to be modernized.  While surveillance of foreign targets had always been legal without a warrant, the question became what to do when information about Americans was inadvertently collected in the process of seeking information on targets abroad – a growing problem since an increasing amount of global electronic communication was being routed through U.S. locations.  FISA required that any time that might happen; a separate individual warrant was required in advance.  U.S. intelligence agencies complained that the 1978 law hampered their ability to conduct effective counterterrorism surveillance on foreign targets. 

With that challenge in mind, in addition to safeguarding civil liberties, this compromise bill provides critical authority and flexibility for U.S. intelligence agencies to acquire foreign intelligence information.  In an emergency, the government may authorize surveillance and apply to the FISA Court for approval within seven days.

The bill also rejects the Senate bill's provisions granting automatic retroactive immunity for telecommunications providers.  Instead the bill requires federal courts to determine companies' liability, and allows them to grant immunity only if shown substantial evidence that the U.S. government ordered companies to comply.  All parties will be allowed to participate in the legal proceedings, with caveats to protect access to highly classified information.

"This bill's approach on telecommunications company liability isn't perfect, but it's a vast improvement over the Senate bill in that it keeps the decision in the federal courts' hands.  What's most important is that government officials can still be held accountable, as the bill provides no immunity to them and requires aggressive investigations into the President's warrantless wiretap program," Smith said.