New FISA Bill Dramatic Departure From Old Law The Senate has passed a new version of the Foreign Intelligence Surveillance Act. National security expert Suzanne Spaulding says the new bill adds to the old law and is a dramatic departure from the legal framework the old law set up.

New FISA Bill Dramatic Departure From Old Law

New FISA Bill Dramatic Departure From Old Law

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

The Senate has passed a new version of the Foreign Intelligence Surveillance Act. National security expert Suzanne Spaulding says the new bill adds to the old law and is a dramatic departure from the legal framework the old law set up.


Welcome to the program.

SUZANNE SPAULDING: Thank you, Melissa. Glad to be here.

BLOCK: Let's compare this new bill with the 1978 Foreign Intelligence Surveillance Act that it's designed to overhaul. Would you say that it weakens the old law?

SPAULDING: Well, it adds to the old law and it's a dramatic departure from the legal framework that the old law set up. The old law was focused on individualized orders targeting individuals who are inside the United States. And this provides a broad authority to target groups of people, categories of individuals, overseas.

BLOCK: Let's break it down a little bit. If the government now wants to wiretap a foreign target or group that's overseas, what's different under this new bill?

BLOCK: No one who hasn't been briefed on the program really understands exactly what that means when we talk about groups, and that's part of the problem with this legislation.

BLOCK: Now, we've been talking about foreign groups. What if the government wants to eavesdrop on an American target, what are the rules under this new bill?

SPAULDING: The rules will be exactly the same as they are today under FISA. If the U.S. government wants to specifically target a known U.S. person, they have to use the traditional FISA process to do that.

BLOCK: No change at all.

SPAULDING: No. Now, what concerns some critics of this bill is that the government could pick up an awful lot of communications of people inside the United States, including Americans, by virtue of targeting people overseas. And if those people overseas call Americans or e-mail, those communications can be intercepted by the government.

BLOCK: That raises a really interesting point, because so much has changed technologically in the last 30 years since the original FISA bill. That must dramatically alter the impact of what these rules are.

SPAULDING: Well, that's exactly right, Melissa, and it's a good point because a lot has been made about the changes in technology requiring an update of FISA to give the government more flexibility. But what folks have paid less attention to is, as you point out, that the changes in technology also mean that far more Americans are communicating internationally, and the impact therefore is much greater.

BLOCK: In terms of the immunity provisions for telecom companies that have becomes so controversial, protecting them from lawsuits, would you say that this bill represents a pure win for the Bush administration on those issues?

SPAULDING: Probably. This certainly is the provision they were looking for, clearly. It very likely will mean the dismissal of the lawsuits. But there is a thin reed upon which plaintiffs in these lawsuits might be - might look for some hope. And that is that under this bill - unlike the bill that passed the Senate earlier, under this bill, the plaintiffs are able to participate in the proceedings and the judge has to go through a process before dismissing these lawsuits. They are not all dismissed upon enactment of this legislation.

BLOCK: What is known about the role of the telecom companies? Which companies shared information with the administration, what kind of information they shared, and how much is just unknown?

SPAULDING: All of it is unknown. There has been a lot of speculation and there were public reports that at least one phone company, Quest, refused to assist the government or participate in some activities that it was asked to participate in by the government. But beyond that, the rest of it has all been kept secret.

BLOCK: And there's supposed to be some investigation going forward.

SPAULDING: It's one of the most important, I think, provisions in this bill, and that is a comprehensive review by the inspector generals of the various national security entities that were involved in the program. They are directed by this legislation to do a comprehensive review of this program from its inception all the way through to the time when it was presented to the FISA court.

BLOCK: But you have heard concerns from certainly Democrats in the Senate, saying this is backwards, you're granting immunity first and investigating afterward.

SPAULDING: There is an awful lot we don't know about this program and, hopefully, we'll know a lot more next year.

BLOCK: Suzanne Spaulding, thanks for coming in.

SPAULDING: Thank you.

BLOCK: Suzanne Spaulding is a national security expert. She's now in private law practice here in Washington, D.C.

Copyright © 2008 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Senate OKs FISA Bill, Immunity For Telecom Firms

Senate OKs FISA Bill, Immunity For Telecom Firms

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

The Senate on Wednesday overwhelmingly approved an update of the Foreign Intelligence Surveillance Act (FISA), bringing to an end a 15-month battle over revamping electronic surveillance rules. The bill would grant retroactive immunity for telecom companies that cooperated with warrentless wiretaps.

It was a major legislative victory for President Bush, who hailed the bill's passage in the White House Rose Garden.

"This legislation shows that even in an election year we can come together and get important pieces of legislation passed," Bush said.

The president said he'd soon sign the surveillance update into law. He'd earlier threatened to veto any bill that did not include a provision shielding phone companies from lawsuits for taking part in warrantless wiretapping. The bill — which the House approved last month — effectively provides such legal immunity, though some senators tried to strip that provision. The Senate approved the bill by a 69-28 vote.

The measure would provide immunity for telecom firms. But that immunity would be granted only after they showed district court documents proving they were instructed by the government to take part in a program that went around the congressionally mandated FISA court. This covert spying program was exposed in December 2005 by The New York Times. The Bush administration had been directing phone companies to eavesdrop without the FISA court's permission since the terrorist attacks Sept. 11, 2001.

Missouri Republican Kit Bond cast the immunity provision as an act of justice by Congress.

"It would be unfair and potentially disastrous to use our patriotic electronic carriers as punching bags to try to get at the administration," Bond said.

And Utah Republican Orrin Hatch suggested that some 40 lawsuits brought against firms such as AT&T and Verizon were really aimed at revealing the government's surveillance methods.

"Simply put, you don't tell your enemies how you track them. That is why the [National Security Agency] and other government agencies won't say they do, how they do it or who they watch — nor should they," Hatch said. "To confirm or deny any of these activities, which are at the heart of the civil lawsuits, would hurt or harm the national security."

Wisconsin Democrat Russ Feingold led an unsuccessful drive to strip the immunity provision from the bill.

'It could not be clearer that this program broke the law, and this president broke the law. Not only that, but this administration affirmatively misled the Congress and the American people about it for years before it finally became public," Feingold said.

And Pennsylvania Republican Arlen Specter pointed out that 70 senators have not even been briefed on what the warrantless spying program entailed.

"There's an old expression: buying a pig in a poke. It means buying something that you don't know what it is you're buying. Well, that's what the Senate is being asked to do here today — to grant retroactive immunity to a program where the members don't know what the program is," Specter said.

Unlike New York Democrat Hillary Clinton, who voted against the bill, her former Democratic presidential rival, Sen. Barack Obama (D-IL), voted for it.

Republican presidential contender John McCain spent the day campaigning.