What: All Issues : Human Rights & Civil Liberties : Government Surveillance of Citizens : S 2248. (Revisions to foreign intelligence surveillance law) Feinstein of California amendment that would stipulate the scope of laws governing electronic surveillance/On agreeing to the amendment (2008 senate Roll Call 13)
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S 2248. (Revisions to foreign intelligence surveillance law) Feinstein of California amendment that would stipulate the scope of laws governing electronic surveillance/On agreeing to the amendment
senate Roll Call 13     Feb 12, 2008
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This vote was on an amendment by Dianne Feinstein, D-Calif., that would state that the 1978 Foreign Intelligence Surveillance Act (FISA) is the "exclusive means" of authorizing electronic surveillance. The FISA law established a special federal court to oversee granting wiretapping warrants to law enforcement officials, including spy agencies.

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 court and collect information about Americans, without a warrant, by petitioning telecommunications providers for phone records and more. It 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. The amendment is intended to prevent a repeat of this situation.

Feinstein said her amendment would be a "strong statement" that the FISA law is the only legal way to collect electronic intelligence information against Americans. She pointed to the administration's attempt to wiretap phones without the approval of the FISA court and said her amendment would prevent a repeat.

"FISA is the exclusive authority for the electronic surveillance of all Americans, and this amendment aims to do that. It provides penalties for moving outside of the law, and I believe it would strengthen the opportunity to prevent the Chief Executive, either now or in the future, from moving outside of this law," Feinstein said.

Christopher Bond, R-Mo., said he opposed the amendment on because it would destroy the bipartisan compromise that was struck as part of the underlying bill. He also complained that the amendment would not be flexible enough to handle emerging threats.

"During the next attack on our country or in the face of an imminent threat, Congress may not be in a position to legislate an authorization. Yet the bottom line is, we just don't know what tomorrow will bring. This provision would raise unnecessary legal concerns that might impede the effective action of our intelligence community to protect this country. Further, because this amendment does not address warrantless surveillance in times of war and national emergency following an attack on our country, it does not provide enough flexibility for intelligence collectors. I am concerned this will cause operational problems," Bond said.

The amendment was offered to a bill that makes revisions to electronic surveillance laws, including controversial provisions that would allow U.S. intelligence agencies to listen in on phone conversations of foreign targets even if they were communicating with someone in the United States. The bill also would grant retroactive legal immunity from prosecution to telecommunications companies that shared customers' private telephone records with the government.

By a vote of 57-41, the Senate rejected Feinstein's amendment. Though more voted yes than no, this particular vote required a three-fifths majority of the Senate (60 votes) for passage. The vote threshold is normally a simple majority, but the leadership decided to raise the vote threshold for this amendment. This was likely done to see whether or not the amendment could survive a filibuster, as it also requires 60 votes to defeat a filibuster. All but one Democrat present voted for the amendment (Ben Nelson of Nebraska).. Of Republicans present, all but nine voted against the amendment. Thus, the measure went forward without language stipulating that FISA law is the "exclusive means" of conducting electronic surveillance.

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