Earlier today I voted "no" on the FISA Amendments Act (H.R. 6304). Speaking from the floor of the House of Representatives, I noted that if this bill becomes law, it perhaps will be the only lasting legacy of the Bush-Cheney Administration overhaul of our national security policy: a Congressionally-blessed distortion of checks and balances.

You have already read my concerns that this legislation does not adhere to the principles that should be included in any reform of FISA. I would like to go beyond the original post and address some of the bill's specifics, which some readers have commented about.

This bill does have some good features. It clarifies that FISA and Title III wiretap laws are the exclusive means by which the government may conduct surveillance on U.S. soil. It also provides for Inspector General reviews of the actions of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, and the Department of Defense in President Bush's domestic surveillance program. And it contains provisions designed to improve oversight of surveillance programs within the executive branch. However, there is much in this bill that falls short.

This bill alters the basic protections of the Fourth Amendment. It permits massive warrantless surveillance. (The authors of the bill dispute this, but if we mean "warrant" in the sense defined in the Constitution and if we recognize that targets can include types or classes of people and all their buddy lists, then my statement stands). The approval is for any intelligence not just against non-state terrorists (who were the reason given for the needed overhaul of our intelligence legislation). There is no statutory standard defining how the communications of innocent Americans will be protected, just a requirement that procedures be developed. A "fishing expedition" approach to intelligence collection does not produce good intelligence and does not make us safer.

Although the bill forbids "reverse targeting" (using a permissible targeted person overseas to get information about an American person not court-approved for surveillance), it provides no specific statutory protections against it. This is a critical point that I cannot emphasize enough. Millions of Americans - whether they are at home or abroad - are talking and emailing with people all over the world. This bill permits their communications to be swept up in a giant electronic dragnet, without any statutory mechanism for recognizing and removing communications of Americans collected incidentally. Of course, we have government assurances that this would not happen. But it has happened in the past.

The previous FISA bills that passed the House contained a "significant purpose" test to ensure that surveillance not be conducted on Americans. In other words, if the significant purpose of the intelligence collection was to gather information on an American. If someone began collecting information on an American or began using information without a legitimate need to know, that would be reported or discovered pretty quickly. That language was dropped from the bill considered today.

The court review provisions are weak and narrowly defined. Some have suggested that some court review is better than no court review. That's only true if the judges' hands aren't tied in the review process, which they are in this bill.

This bill does not state explicitly that a judge can modify a surveillance order to ensure that Fourth Amendment protections are adhered. Instead this bill takes a "check list" approach to judicial review: if the executive branch-certified elements are included in a surveillance request, the judge must approve it. The list includes the targeting and minimization procedures, as well as affidavits from government officials and any supporting information. The language does not give the court the authority to investigate the truthfulness or accuracy of the affidavits required of government officials or the supporting information they certify. The court's only role is to confirm or deny that an affidavit has been submitted. That's not judicial review, it's a rubber stamp.

Additionally, under this bill, even if a judge denies a surveillance request, the electronic spying can continue during the appeals process. Under FISA and existing Title III wiretap laws, if the judge denies the order, collections stop until the government changes its surveillance approach to make it legal.

Moreover, the "exigent circumstance" provision in this bill, which allows surveillance without prior court approval, is worded in such a way as to exclude even minimal court involvement. Because surveillance can proceed without court approval if collection of information would be delayed, the court is effectively bypassed. There need not be any emergency, and the information could even be routine in nature. Because any wiretap not connected means some information is not collected, every situation could be considered an "exigent circumstance." Someone assured the negotiators of this bill that the exigent collection clause "would not be used frequently", but that is hardly a substitute for good legislative language.

Under FISA, emergency surveillance was just that - surveillance that was necessary because of an imminent threat to life and limb. This bill grants the government the kind of broad surveillance authority that the House has previously repeatedly rejected.

The bill was presented to the House with less than 24 hours to review before voting. Anything this serious, this complicated, this contentious - and with very quick review before passage - should be revisited soon. This bill could have included a one-year sunset so we could have the opportunity to revisit the implementation of these changes. Indeed, that was the one silvering lining with the discredited so-called "Protect America Act" - it had a six-month sunset provision. Instead, the bill before us will sunset in four years. This is too long, and will make it more difficult for us to easily and quickly make changes to this bill if, as I expect, major adjustments to its provisions prove necessary.

Finally, this bill includes provisions that will make it impossible for American citizens to hold telecommunications companies accountable for any involvement they may have had in the Bush-Cheney Administration's illegal surveillance program. Under this bill, if the Administration provides certifications to the court that the companies cooperated at the request of the President, the suits would be dismissed. Secret evidence may be used, and the plaintiffs are barred access to that information--even in ex parte or in camera proceedings. If enacted, the bill would make legal any illegal behavior that may have occurred. A better solution was contained in the bill that the House passed in March, which would have allowed the lawsuits to go forward and would have also permitted the companies to defend themselves by making all relevant information available in judicial proceedings with appropriate secrecy protections.

I regret that the House has again elected to grant the executive branch sweeping, unwarranted, and unconstitutional surveillance powers, and at the same time denied potentially wronged citizens their day in court. It is a decision we are likely to rue, and soon.