The Senate voted 68-29 on Wednesday to broaden the authority of the executive branch by approving changes to the Foreign Intelligence Surveillance Act (FISA). The FISA Amendments Act of 2008 (H.R.6304) was passed by the House on June 20.

(Photo: Whitaker /

    Earlier Wednesday, the Senate struck down three amendments that would have delayed, weakened or revoked a controversial provision in the bill to grant unconditional, retroactive immunity to telecommunications companies that assisted the White House in its warrantless wiretapping program.

    The amendment proposed by Senator Jeff Bingaman (D-New Mexico) would have delayed granting immunity to telecommunications companies "until 90 days after the date the final report of the Inspectors General on the President's Surveillance Program is submitted to Congress." While the immunity would subsequently follow, delaying of the immunity provision would have created incentive for the president to turn over documents related to his surveillance program. The delay would have also allowed Congress to review individual cases before granting blanket immunity.

    The amendment supported by Senator Arlen Specter (R-Pennsylvania) would have withheld immunity if the NSA program, initiated by the Bush administration, proved unconstitutional.

    The amendment brought forward by Senator Christopher Dodd (D-Connecticut) and Senator Russ Feingold (D-Wisconsin) would have stripped the retroactive immunity provision altogether.

    The Bingaman amendment failed 42-56, the Specter amendment failed 37-61 and the Dodd-Feingold amendment failed 32-66;

    While Senators Dodd and Feingold considered a filibuster of the final legislation after their amendments failed, they lacked the necessary votes to stop the vote from taking place.

    "Mr. President, I sit on the Intelligence and Judiciary committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program," Feingold stated Wednesday on the Senate floor. "And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new president, or simply the passage of time, members of this body will regret that we passed this legislation."

    Deflating the significance of the administration's surveillance program, Senator Orin Hatch (R-Utah) contended Wednesday on the Senate floor that "Unless you have al-Qaeda on your speed dial, you have little to worry about." However, this point that the Bush administration initiated its surveillance program to fight terrorism has been challenged by individuals who cite reports of the White House initiating the NSA program before 9/11.

    Opponents of retroactive immunity argue that the more than 40 lawsuits currently in place against telecoms are necessary to better understand the warrantless wiretapping program.

    As many computer science experts point out, one of the most significant aspects of the changes to FISA is that there is little to no oversight over how information is gathered. NSA can potentially sift through huge amounts of data with little challenge to the processes. Many experts in communications and network transfers note that complex algorithms govern how servers would extract information for later analysis by humans, and the judge (unless he is an adept programmer and network expert) may not fully understand the implications of the methods used.

    This example is far from hypothetical. Mark Klein, an employee of AT&T for over 22 years described "secret rooms" used by AT&T, in cooperation with the government, to mine massive amounts of data from US citizens.

    Mark Klein, who vehemently opposes the immunity provision, said in an interview with Democracy Now: "... Congress is intervening against the judicial process to kill the lawsuits and essentially protect the president. And it's kind of ironic, because, you may know, the FISA law itself originated when the Democratic Party in Congress discovered that Nixon was trying to spy on Democratic National Committee headquarters in the '70s, and they passed this law to require that any domestic spying must go - must be approved by a secret court, a FISA court."

    On December 16, 2005, The New York Times reported that since shortly after September 11, 2001, the Bush administration, through the National Security Agency, had been eavesdropping on Americans and others inside the US without the necessary authorization.

    Advocates of the Bush administration's policies argued that the urgency of 9/11 called for more expansive surveillance powers.

    However, six months after The New York Times report, Bloomberg contended the administration's program had started even earlier - about seven months before 9/11. This crucial distinction came to light amid a lawsuit against AT&T, Verizon and BellSouth.

    This chronology was confirmed in 2007 by former chief executive of Qwest Communications International Joseph P. Nacchio. Nacchio claimed Qwest's refusal to participate in the administration's surveillance program led the government to revoke a significant contract with Qwest.

    "Congress is poised to strip the courts of their authority and, in doing so, not only frustrate citizens but eviscerate the Fourth Amendment and the constitutionally mandated separation of powers," Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a statement on the ACLU web site tuesday.

    "We are considering granting immunity when roughly 70 members of the Senate still have not been briefed on the president's wiretapping program," Senator Feingold said Tuesday on the Senate floor. "The vast majority of this body still does not even know what we are being asked to grant immunity for."

    This was a primary concern of senators supporting amendments to the FISA legislation.

    Senator Specter shared similar concerns, stating, "In the future, historians are going to look back on the period from 9/11 to the present time as the greatest expansion of executive power in American history."

    "Think about what we've been hearing from the White House in this debate," Senator Ted Kennedy (D-Massachusetts) said on the Senate floor back in December 2007. "The president has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the president at his word, he is willing to let Americans die to protect the phone companies. The president's insistence on immunity as a precondition for any FISA reform is yet another example of his disrespect for honest dialogue and for the rule of law."

    Critics of President Bush's views on surveillance are especially troubled by his opposition to the Bingaman amendment. The president vowed to veto the FISA bill if it does not grant immediate immunity to telecom companies.

    Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey wrote a letter to Senate Majority Leader Harry Reid stating this position. "Any amendment that would delay implementation of the liability protections in this matter is unacceptable. Providing prompt liability protection is critical to the national security," the letter read.

    "This immunity provision doesn't just allow telephone companies off the hook. It will also make it that much harder to get at the core issue that I've been raising since December 2005, which is that the president broke the law and should be held accountable," Feingold emphasized on Tuesday.

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    Senate Roll Call

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