DPC REPORTS
FACT SHEET | February 5, 2008
Securing Our Nation and Safeguarding Our Liberties: Senate Democrats are Working to Pass the FISA Amendments Act of 2008
Last August, the Bush Administration came to Congress seeking emergency changes to the Foreign Intelligence Surveillance Act (FISA) so that the government could legally continue its warrantless wiretapping program -- a program it had previously operated in secret, without the authorization of Congress and in violation of FISA. Though the President had wasted precious years disregarding existing law and denying the program’s existence, Democratic leaders worked with the Administration to provide the intelligence community the tools it needs to protect the nation from terrorism. Congress moved quickly to pass the Protect America Act of 2007 (PAA) -- a six-month, temporary amendment to FISA to ensure that there would be no surveillance gaps while Congress considered longer-term amendments to the statute.
Over the last six months, Democrats have worked with the Administration, the intelligence community, and privacy advocates to develop two proposals for amendments to FISA, both of which are improvements to the PAA. The road has not been easy, with Republican obstructionism frustrating and delaying the process time and time again, but Democrats believe that we can and will reconcile our differences to pass a good bill in February that will secure our nation and safeguard our civil liberties.
As we move forward to consider the FISA Amendments Act of 2008, Democrats encourage President Bush and Senate Republicans to set-aside partisan politics in favor of working with Democrats to send a message to the world that America is strong, secure, and united in our commitment to fight terrorism and embrace democracy at home and abroad.
The Senate Select
Committee on Intelligence’s FISA Amendments Act of 2008 is a vast
improvement over the Protect
·
Strengthen our national security by providing the Intelligence Community the tools it
needs to target non-U.S. persons reasonably believed to be outside the
· Provide better protections for Americans by increasing the role of the Foreign Intelligence Surveillance Court (FISC) in reviewing and approving minimization procedures and approving orders targeting U.S. persons overseas and ensuring that traditional FISA warrant rules still apply for purely domestic communications; and
· Increase oversight and accountability of government actions by requiring that additional data be reported in semi-annual reports to Congress on intelligence collection, yearly audits be conducted of the surveillance program; and relevant Offices of Inspector General review the impact of new authorities on U.S. persons and communications.
Senate Democrats have proposed several amendments -- many of them with bipartisan support -- to the FISA Amendments Act of 2008. These amendments would:
· Provide meaningful oversight of intelligence activities. This amendment would grant the FISC the discretionary authority to not only review and approve minimization rules but to review their implementation. The amendment would ensure that rules approved by the FISC to protect Americans whose communications are incidentally picked up by the intelligence community while conducting foreign surveillance are followed. (S.A. 3920, sponsored by Senators Whitehouse, Rockefeller, Leahy and Schumer.)
· Ensure the timely review of expanded authorities. This amendment would shorten the sunset of the FISA Amendments Act of 2008 from six years to four years, ensuring that the next President will focus on this issue. This amendment would give the next President and future Congresses the opportunity to review the need and effectiveness of these provisions, particularly in light of rapidly changing technologies. (S.A. 3930, sponsored by Senator Cardin, Mikulski, Leahy, Rockefeller and Salazar.)
· Ensure the exclusivity of FISA. This amendment would reiterate Congress’s original intent that FISA be the exclusive means for conducting electronic surveillance. The amendment would reject the President’s now discredited argument that the 2002 Authorization for Use of Military Force against al Qaeda and Taliban granted him authority for warrantless wiretapping outside the parameters set forth in FISA and affirmatively state that only an “express statutory authorization” would create an exception to FISA. (S.A. 3910, sponsored by Senators Feinstein, Rockefeller, Leahy, Nelson (FL), Wyden, Hagel, Menendez, Snow and Specter.)
· Require a warrant when targeting persons in the
· Prohibit “bulk collections.” This amendment would prevent the government
from authorizing “bulk collections,” such as acquisition of all communications
between the
·
Protect innocent
communications between people in the
·
Prohibit the use of illegally
obtained information. This
amendment would create an incentive for the government to implement lawful
procedures by limiting the government’s use of illegally gathered information
on
· Provide an alternative to blanket immunity for
telecommunication companies. This
amendment would substitute the government for telecommunication companies being
sued for their participation in the warrantless wiretapping program, but only
if the company is first determined by the FISC to have
Additional
amendments have also been offered with respect to telecommunication companies,
including one that would require a review by
the FISC of telecommunications companies’ actions to
determine whether their alleged participation
in the warrantless wiretapping program complied with the legal
requirements of FISA or was legal or undertaken in
good faith with an objectively reasonable belief that such assistance was lawful. If the court found that the assistance met
either of these two standards, or that the companies did not provide
assistance, then the cases against them would be
dismissed. If the court found that companies knew or reasonably should
have known that their actions were illegal, the pending cases against them
would continue. Moreover, this amendment would allow plaintiffs
and defendants in the cases to appear before the FISC in an effort to avoid a
one-sided judicial review. (
Democrats have also
offered an amendment to strike all references to retroactive immunity for
telecommunication companies, which would leave the decision to grant immunity
or provide some other alternative to the federal courts. (S.A.
3907, sponsored by Senators Dodd, Feingold, Leahy, Kennedy,
Harkin, Wyden, Sanders, Obama, Clinton and Biden.)