July 9, 2008 -- Some 15 months after the first reports emerged that the Bush administration may have been engaging in a massive, top-secret, warrantless surveillance program, Congress passed a sweeping new law Wednesday that critics say will leave most of the program largely intact.
The revelations about the surveillance program sparked fierce debate on Capitol Hill from Democrats and an all-out attack from civil libertarians.
Lawmakers voted 69 to 28 to pass the bill, which also offers a controversial provision that provides a get-out-of-jail-free pass to telephone companies beset by lawsuits after they provided the government with access to information for the program, which began after the 9/11 terror attacks.
While the program will now become law, most of it's provisions remain secret from the public and most lawmakers, although the administration will now be required to place all international surveillance activity under the authority of a secret court created to consider the so-called FISA cases.
Sen. Arlen Specter, a Republican who opposes the way the bill gives the phone companies immunity from lawsuits told his colleagues before the vote they were preparing to commit an "historical embarrassment."
"Everybody knows we don't know what we're voting on," Specter said, pointing out that many lawmakers still have not been fully briefed on the president's program, for which the phone company immunity is being granted.
"That's what the members of the Senate are being asked to do today, grant retroactive immunity on a program the senators don't know what it is," Specter said, although he opposed the attempt to strip the immunity provision in favor of changing it. Specter's amendment also failed.
And so the FISA bill was an "historial embarrassment" that Specter became complicit in when he chose later to vote for the law.
"Faced with two unsatisfactory options, I chose to give law enforcement the extra power to fight terrorism even though I would have preferred a different balance on protecting constitutional rights," he said in a paper statement after the vote.
President Bush praised the law, calling it a "vital piece of legislation that will make it easier for this administration and future administrations to protect the American people."
"This vital intelligence bill will allow our national security professionals to quickly and effectively monitor the plans of terrorists outside the United States, while respecting the liberties of the American people," Bush told reporters in the White House Rose Garden immediately upon his return from the G8 Summit in Japan.
Sen. Kit Bond, the ranking Republican on the Senate Intelligence Committee, attempted to assure Americans that the new measure does not encroach on their rights "unless you've got al Qaeda on speed dial."
Making the argument to protect civil liberties at the expense of national security proved too difficult for many Democrats.
Sen. Barack Obama, who is the Democrats' presidential candidate, had pledged earlier this year to support a filibuster of the bill. But while Obama voted in favor of the doomed amendments to strip the immunity clause, he did not vote in favor of filibustering the bill and supported its final passage.
Congress will be required to reevaluate the law in 2012. "It is not all that I would want," he said in a written statement announcing the change in his position in June. "But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president I will carefully monitor the program, review the report by the inspectors general, and work with the Congress to take any additional steps I deem necessary to protect the lives -- and the liberty -- of the American people."
A vote on final passage is expected later this afternoon..
It was mainly Democrats who opposed the bill, and they could muster less than half of the 60 votes they need to block passage when senators voted 72-26 to limit debate on the measure. Attempts by Democrats to strip a provision that provides retroactive immunity to the telecom companies failed 63-32 and a plan to delay the immunity provision pending an inspector general report also failed.
Any changes would send the bill back to the House of Representatives, where it passed 293-129 late last month.
It was the provision that gave legal immunity to telephone companies that handed over personal information to the government without warrants after 9/11 has sparked fierce debate.
Supporters of the bill, Democrats and Republicans, said it is a fragile compromise and should be passed immediately to help the intelligence community guard against terrorist attacks.
"The bill before us reflects the fact that FISA, as it was created in 1978, has increasingly become outdated and hindered our nation's ability to collect intelligence on foreign targets in a timely manner," said Sen. Jay Rockefeller, D-W.Va., who is chairman of the Senate Intelligence Committee. "It is the direct result of changing technologies, advances in telecommunications and the need to evolve and meet today's threats facing our nation -- namely global terrorism and the proliferation of weapons of mass destruction."
In a joint letter to Senate Majority Leader Harry Reid, Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell said that President Bush would veto the bill if any of the amendments were attached to it and argued that the telephone companies needed the immunity to continue cooperating with the government for national security.
"The question before the Senate is really quite simple. We either pass this delicately balanced, bipartisan bill, which gives our intelligence officials the tools they need to find foreign terrorists overseas, which is a compromise on the bill the Senate already passed and which will also garner a presidential signature, or we scrap it altogether and end up right back where we were a year ago," said Senate Republican leader Mitch McConnell of Kentucky.