Fiscal 2008 Intelligence Authorization (H.R. 2082)/Rep. Adam Schiff (D-Calif.) amendment to clarify that the 1978 Foreign Intelligence Surveillance Act is the exclusive means by which domestic electronic surveillance for the purpose of gathering foreign intelligence information may be conducted
house Roll Call 339 May 10, 2007
This vote was on an amendment to legislation authorizing funding for the intelligence agencies for fiscal 2008. Proposed by Reps. Adam Schiff (D-Calif.) and Jeff Flake (R-Ariz.), the amendment would clarify that the 1978 Foreign Intelligence Surveillance Act (FISA) is the exclusive means by which domestic electronic surveillance for the purpose of gathering foreign intelligence information may be conducted.
The impetus behind the amendment was a growing dissatisfaction among lawmakers, Democrats particularly, at the Bush administration's use of wiretapping and other surveillance methods for domestic spying. The administration has argued that FISA doesn't provide the necessary tools to fight terrorism, and a series of news reports in recent years has revealed that the administration has flagrantly disregarded FISA requirements, namely that the government obtain a warrant from a secret court before eavesdropping within the United States on Americans. The administration was working to convince Congress to retroactively expand surveillance authority beyond FISA's boundaries, something Congress would eventually go on to do in August.
The basic thrust of this amendment was to reaffirm FISA's primacy in governing domestic surveillance, and its adoption was a setback (albeit a temporary one) to the administration.
Schiff said he and Flake's amendment was designed to reign in "the president's unilateral assertion of power with regard to the electronic surveillance of Americans on U.S. soil and reassert that our existing statutes govern the operation of such surveillance."
He said that while the president possesses the authority to engage in electronic surveillance of "the enemy" outside the country, Congress possesses the authority to regulate such surveillance within the United States.
"The president has argued that the authorization for the use of military force provided him with the authority to engage in warrantless electronic surveillance of Americans," Schiff said. "It is hard to believe that any of us contemplated, when we voted to authorize the use of force to root out the terrorists who attacked us on September 11, that we were also voting to nullify FISA."
He concluded that if the government can eavesdrop on purely domestic calls between Americans without court approval, there would be no limit to executive power.
Rep. Heather Wilson (R-N.M.) responded that "the sad thing is that the bipartisan leadership of this body, Democrat and Republican, knew for five years this program was going on and did nothing to update the laws or even propose that perhaps this was wrong to do this this way. They remained silent. The failure is in the Congress."
Wilson and many Republicans maintained that FISA was broken, as it was no longer able to let the intelligence agencies gather crucial information about "our enemies," nor was it protecting the civil liberties of Americans. For that reason, she said, she couldn't support the amendment, because the law is "outdated, and we are stuck with our heads in the sand in 1970s law. And your amendment insists that we stay there."
Twenty-three Republicans broke with party ranks to support the amendment, and only five Democrats opposed it. Thus, on a vote of 245 to 178, the House voted to reaffirm that intelligence agencies had to get a warrant from a secret court in order to spy on Americans within the United States, and legislation authorizing intelligence spending for fiscal 2008 went forward with the provision.
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