[JURIST] US Attorney General Michael Mukasey and US Director of National Intelligence Mike McConnell [official profiles] said Friday that some telecommunications companies are circumventing wiretapping orders after the temporary Protect America Act [S 1927 materials] expired [JURIST report] last week without an agreement in Congress on replacement legislation, causing intelligence agencies to lose vital information. In a letter [PDF] to the House Intelligence Committee, Mukasey and McConnell said that intelligence has been lost while some companies wait to see how the legislature settles a dispute over whether or not to provide immunity for telecommunications companies [JURIST report] from lawsuits related to their participation in the NSA warrantless surveillance program [JURIST news archive]. The Senate passed [JURIST report] the FISA Amendments Act [S 2248 materials] last week, but the House of Representatives did not approve the Senate bill before leaving for a 12-day recess. The version approved by the Senate provides retroactive immunity for the companies, while the House version [HR 3773 materials], approved [JURIST report] in November, does not include the immunity provisions. AP has more.

The FISA Amendments Act, supplementary to the 1978 Foreign Intelligence Surveillance Act [text], would make it easier for the government to monitor foreign phone calls and e-mails that pass through the United States. In the absence of new legislation, the government can get an order from the secret Foriegn Intelligence Surveillance Court to monitor calls and e-mails, set up under FISA. Amendment supporters have rejected this option, saying it creates too much red tape. Strong critics of the legislation, including Senator Christopher Dodd (D-CT) [official website], have deplored its retroactive grant of immunity to participating telecom companies as an effective endorsement of warrantless wiretapping contrary to the rule of law [transcript; recorded video].