I. Republican-sponsored bills
A. The current Specter bill in the Senate, S 2453, as amended in committee:
1) Repeal the core requirement of FISA that its procedures and the criminal Wiretap Act (Title III) "shall be the exlusive means" for conducting electronic surveillance. The bill essentially makes FISA optional overall, by explicitly deferring to the President's "inherent" constitutional authority instead.
2) Authorize (but not require) the President to submit the current NSA surveillance program to review and blessing by the FISA courts. This review effectively would be limited to Fourth Amendment issues. The separation-of-powers issues deriving from FISA itself would not be reviewed, because Congress already would have capitulated in Step 1) above.
3) Refer all third-party court challenges to intelligence-surveillance programs to the FISA courts, instead of the ordinary District Courts such as those of Judge Taylor in Detroit, Judge Lynch in New York or Judge Walker in San Francisco, which now have several cases before them. I am uncertain of what effect this would have on Judge Taylor's case, since she already has ruled against the program and issued an injunction.
4) Make some fundamental changes to the definitions within FISA, most importantly removing the current provision that makes FISA apply to any intelligence surveillance acquired within the United States, regardless of who the target is. This apparently would have the effect of authorizing warrantless surveillance beyond that now reported to take place under the NSA program.
B. The DeWine bill in the Senate, S 2455:
1) Essentially ratify the current general NSA program by authorizing such warrantless surveillance within FISA.
2) For the absence of judicial review by the FISA courts of warrant applications, substitute general oversight by the congressional Intelligence committees.
C. The Wilson bill in the House, HR 5825, cosponsored by GOP committee chairmen there.
1) Make changes to FISA's definitions, including key changes identical to those in Specter's bill (see above).
2) Authorize within FISA a program of warrantless surveillance similar to that reported to occur in the NSA program today. This provision is similar but not identical to the "ratification" proposed in the DeWine bill. The Wilson bill also calls for general congressional oversight in lieu of individual warrants.
II. Democratic bills
A. The Feinstein bill in the Senate, S 3001, also sponsored by Specter but only nominally.
1) Reaffirm that FISA and Title III procedures "shall be the exclusive means" for conducting surveillance, eliminating the chance that the AUMF might be construed to authorize warrantless surveillance that FISA prohibits.
2) Provide increased flexibility in FISA's current "emergency" provisions for beginning surveillance before warrants are issued, and increasing the emergency period from the current one-stage provision of three days to a two-phase provision of three days at first, with the final warrant application not due for seven days. The greater flexibility within the three days is offset by detailed oversight reports to Congress and the FISA courts.
3) Increase the resources for processing these individual FISA warrants.
4) Make the current provision allowing 15 days of warrantless surveillance immediately following a declaration of war also apply to 15 days following a national emergency or passage of an AUMF, as defined by the War Powers Act.
B. The Harman bill in the House, HR 5371, cosponsored by many fellow Democrats.
1) Reaffirm that FISA and Title III provisions are the "exclusive means" for conducting surveillance. This language is similar not identical to that in the Feinstein bill.
2) Require the President to report to the Intelligence committees specific recommendations to ensure that such individual warrants can be processed efficiently, including emergency warrant applications.
3) Authorize "such sums as may be necessary" for efficient processing of FISA warrants.
