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The New FISA Bill: A Bad Deal
The New FISA Bill: A Bad Deal
June 23, 2008
The FISA deal announced on June 19 effectively
grants retroactive immunity to companies that allegedly participated
in the President’s illegal wiretapping program, and it does
not provide adequate protections for innocent Americans. Title
I of the new bill, which includes a dramatic expansion of
the Foreign Intelligence Surveillance Act, does not include
the most significant safeguards approved by the Senate Judiciary
Committee, and it does not include any of the amendments that
Senator Feingold offered on the Senate floor earlier this
year, each of which received 35 or more Democratic votes.
These safeguards would have permitted the government to obtain
the intelligence information it needs while also protecting
the privacy of law-abiding Americans.
Background
The purpose of the bill is to address a
problem that everyone agrees should be fixed – namely, making
clear that the government does not have to get a warrant for
foreign-to-foreign communications that happen to pass through
the U.S. The new bill goes far beyond this narrow fix, however.
It allows the government to listen in on international communications
to and from law-abiding Americans in the U.S. who have no
connections to terrorism, and the checks on this international
dragnet authority are entirely inadequate.
Unjustified Grant of
Retroactive Immunity
Under the new FISA bill, H.R. 6304, the
immunity outcome is predetermined. A federal district court
could review in secret the letters to companies to determine
whether ‘substantial evidence’ indicates that they received
written requests stating the activity was authorized by the
President and determined to be lawful. But information declassified
by the Senate Intelligence Committee already indicates that
the companies got such written requests – meaning immunity
is virtually guaranteed. The plaintiffs could participate
in briefing to the court, but only to the extent it does not
necessitate the disclosure of classified information, which
will seriously impair their ability to participate in a meaningful
way.
Lengthy Sunset
The bill sunsets in December 2012, a mere one year earlier
than the Senate bill and a presidential election year.
Little Protection Against Reverse Targeting
The bill prohibits intentionally targeting a person outside
the U.S. without an individualized court order if “the purpose”
is really to target someone reasonably believed to be in the
U.S., and it requires the executive branch to establish guidelines
for implementing this requirement. But the guidelines are
not subject to judicial review, and the bill does not include
provisions approved by the Senate Judiciary Committee bill
that would require the government to obtain a court order
whenever a significant purpose of the surveillance is to acquire
the communications of an American. This important “significant
purpose” language had the support of 38 Senators when offered
on the Senate floor, and was included in the House bill.
No Prohibition on Bulk Collection
The bill does not include a prohibition on bulk collection
– the collection of all international communications into
and out of the U.S. to a whole continent or even the entire
world. Such collection would be constitutionally suspect and
would go well beyond what the government has says it needs
to protect the American people. This protection was in the
Senate Judiciary Committee bill, and it garnered the support
of 37 Senators on the Senate floor.
Loophole for Advance Judicial Approval of Court Orders
Under the bill, surveillance can begin after the FISA Court
authorizes the program, or if the Attorney General and Director
of National Intelligence certify that they don’t have time
to get a court order and that intelligence important to national
security may be lost or not timely acquired. This broad ‘exigency’
exception could very well swallow the rule, and undermine
any presumption of prior judicial approval.
No Limits on Use of Illegally Obtained Information
If the government goes forward with surveillance before obtaining
court approval, and the court subsequently determines that
the government’s surveillance violated the law, the government
can nonetheless keep and use any information it obtained.
The compromise does not include a provision from the Senate
Judiciary Committee bill that gives the FISA Court discretion
to impose restrictions on the use of information about Americans
acquired through procedures later determined to be illegal
by the FISA court. This amendment had the support of 40 Senators
on the Senate floor.
Few Protections for People in the United States
The bill does not include anything similar to the amendment
offered by Senators Feingold, Webb and Tester (with 32 other
Senators supporting) to provide additional checks and balances
for Americans at home whose international communications are
obtained because they are communicating with someone overseas,
while also allowing the government to get the information
it needs about terrorists and purely foreign communications.
Some Areas of Improvement
The bill contains some areas of improvement, but they do
not address the serious privacy problems with the Senate bill.
- The bill contains strong language making clear that FISA
and the criminal wiretap laws are the exclusive means by which
electronic surveillance may be conducted.
- The bill contains an Inspector General review of the so-called
"Terrorist Surveillance Program."
- The bill no longer redefines the key FISA term of "electronic
surveillance."
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