This vote was on passing a bill that would amend the Foreign Intelligence Surveillance Act of 1978 (commonly abbreviated FISA) to expand the authority of the U.S. Attorney General to conduct time-sensitive surveillance, without a warrant, of those suspected of being foreign terrorists. The bill’s provisions would end (or “sunset”) in six months, giving Congress a small window of time in which to work out the details of a larger FISA overhaul bill.  However, unlike a competing bill Congress passed earlier the same day, the measure contains more protections for American citizens. In essence, this bill would allow warrantless surveillance of foreign-to-foreign communications and, in some circumstances, of communications between U.S. citizens and targets overseas.  The competing bill would allow mostly unfettered surveillance of U.S. citizens.

A top priority for President Bush, the measure is intended to eliminate what the administration has characterized as hitches or gaps in the FISA law, which created a special court to authorize wiretaps on foreigners.  The most significant stumbling block has to do with the way modern-day communications technology works (many communications that are held between two entities in foreign countries are actually intercepted inside the United States, which had created a host of legal questions). The bill is also intended to address extra limitations placed on surveillance as a result of an earlier court ruling. 

The bill would allow the administration to immediately begin conducting warrantless wiretaps on foreign targets, as long as the communication was between two foreigners.  Surveillance of American citizens would still require a warrant.

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 courts and collect information about Americans, without a warrant, by petitioning telecommunications providers for phone records and more.  That 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.

John Rockefeller, D-W.Va. and chairman of the Senate Intelligence Committee, said the bill “has guidelines in place to address the concerns of many, including our intelligence officials, that surveillance of foreign targets not inadvertently result in the reverse targeting of Americans and their communications based on innocent communications swept up between Americans and individuals overseas.” In essence, the two bills are largely similar, except the Democratic measure would make it more difficult to conduct telephone surveillance of an American citizen without a warrant.

Kit Bond of Missouri, the highest ranking Republican on the Intelligence committee, roundly criticized Rockefeller’s bill, saying that his party had not been given sufficient time to review it, and that “we are absolutely stunned that this bill adds new burdens to the already overburdened process of collecting against foreign targets.”  Bond said the bill would apply a very difficult test before allowing a warrantless wiretap to occur (determining whether or not communications were only between two foreign persons). 

“You can’t tell if it is a communication between foreign persons when you target a foreign source because you don’t know with whom that person is communicating. That is why there are so many burdens now on the FISA court,” Bond said.

However, under intense pressure from the White House to act quickly to bridge these gaps in surveillance law to stave off more terrorist attacks, the Democratic leadership allowed the short-term bill Republican to go forward, vowing to revisit the issue with a longer-term bill when this bill expired in six months.
 (See vote 309.)

In the end, some Democrats said they voted for both versions of the bill, hoping that one would be able to reach the 60-vote threshold set by the Senate for passage.  Normally, a simple majority of votes is all that is needed to consider a bill passed.  But in this instance, the Senate decided to set the threshold at 60 votes (out of a possible 100 – a large margin in the Senate).  This was to ensure that whatever passed would do so by a filibuster-proof margin.  Filibusters – where one senator holds up floor action through a marathon session of talking – require 60 votes to shut down.

“With all respect to my colleagues, I plead with everyone, let us not strive for perfection. Let us put national security first. Let us understand if this passes, as I pray it will, and the President signs it, as I know he will if it passes both Houses, we are going to have 6 months to reason together to find something better. If we leave Washington for August recess without closing this gap in our Nation’s intelligence capabilities at a time of war, it will be quite simply a dereliction of duty by this Congress. It will be a failure to uphold our constitutional responsibility to provide for the common defense,” said Joseph Lieberman, I-Ct.

By a vote of 43-45, the Senate rejected the bill.  All Republicans present voted against the measure.  Of Democrats present, all but 42 voted for the bill (Mark Pryor of Arkansas).  The end result was that the measure that would have expanded the authority of the federal government to conduct surveillance of suspected foreign terrorists, but not American citizens, without a warrant.