Fact Sheet - Identifying the
Flaws of the FISA Legislation
October 25, 2007
Before adjourning for the August recess,
Congress rushed through legislation increasing the government’s
power to conduct warrantless surveillance. Now, Congress must
fix the fundamental flaws of the so-called Protect America
Act: the lack of meaningful court involvement, the lack of
privacy protections for law-abiding Americans, and inadequate
congressional and administrative oversight. Congress has the
chance to get this legislation right, so we can go after terrorists
without sacrificing the privacy of ordinary Americans. Unfortunately,
the bill passed by the Senate Select Committee on Intelligence
does not do nearly enough to fix the PAA. The bill passed
by the Senate Intelligence Committee fails because:
It does not adequately protect
the rights of innocent Americans.
- Everyone agrees that the government shouldn’t need a warrant
to listen to communications between foreigners overseas
just because their communications happen to pass through
the United States. But individuals who are overseas also
communicate with people inside the United States, and who
have Fourth Amendment rights. Congress needs to incorporate
additional protections to make sure the government is not
using its new authorities to spy on Americans without justification.
- Unfortunately, the bill does not include adequate protections
for the rights of innocent Americans communicating with
people overseas. If an American businessperson wants to
contact a foreign customer, or a student receives an email
from a friend she met while studying abroad, or a journalist
wants to call a foreign source, they should not have to
give up the protections granted to them by our Constitution.
- Senator Feingold believes that these problems can be addressed
by giving the FISA Court greater authority to review surveillance
involving people in the United States, and to make sure
that the government is not abusing its new powers. He also
wants to replace the six-year sunset in the bill with a
more sensible two-year sunset.
It grants retroactive immunity
for alleged cooperation with the illegal wiretapping program.
- The bill includes unjustified retroactive immunity for
those alleged to have cooperated with the Administration’s
illegal warrantless wiretapping program. The administration
is effectively asking most members of Congress to grant immunity
without knowing what they are granting immunity for.
- Current law already grants immunity to companies that cooperate
with the government pursuant to a court order or Attorney
General certification. Granting additional, retroactive immunity
sets a bad precedent by sending the message that breaking
the law is permissible and that companies that are supposed
to safeguard our personal communications do not have to follow
the privacy protections in law.
- The immunity provision in the bill would effectively deny
the courts the opportunity to review the warrantless wiretapping
program. Lawsuits against private entities alleged to have
cooperated with the warrantless wiretapping program may be
the only avenue for judicial review of the legality of the
program.
Senator Feingold will continue working to fix these problems,
and he will strongly oppose any FISA legislation that:
- Does not adequately protect the privacy of Americans communicating
with people overseas.
- Contains retroactive immunity for any party alleged to
have cooperated with the president’s illegal warrantless wiretapping
program.
Senator Feingold’s efforts to fix these problems are the
latest in his long history of working to protect the privacy
of law-abiding Americans:
- On December 17th, 2005, the same morning the President
confirmed the existence of the warrantless wiretapping program,
Senator Feingold said, "The President does not get to pick
and choose which laws he wants to follow. He is a president,
not a king. On behalf of all Americans who believe in our
constitutional system of government, I call on this Administration
to stop this program immediately and to fully cooperate with
congressional inquiries and investigations."
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