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 America Act of 2007. The bill would:
· 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 United States;
· 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 United States. This amendment would prohibit warrantless reverse targeting by requiring a FISC order for surveillance of a foreign person overseas where the “significant purpose” of the collection is to collect the communications of a person located in the United States. (S.A. 3913, sponsored by Senators Feingold, Menendez and Dodd.)
· Prohibit “bulk collections.” This amendment would prevent the government from authorizing “bulk collections,” such as acquisition of all communications between the U.S. and the rest of the world. While of questionable constitutionality, the Director of National Intelligence has said such collection would be permissible under current law. This amendment would require the government to certify to the FISC that it is acquiring communications of targets for whom there is a foreign intelligence interest. (S.A. 3912, sponsored by Senators Feingold and Dodd.)
· Protect innocent communications between people in the U.S. and people overseas. This amendment would allow the government to get the information it needs about terrorists and purely foreign communications, while providing additional checks and balances for communications between people in the United States and their overseas family members, friends and business colleagues. This amendment would require the government to tag or otherwise segregate communications that it has acquired and determined have one end in the U.S., and permit the communications to be accessed and disseminated if they involve terrorism, a threat to someone’s safety, or are subject to a court order. (Sponsored by Senators Feingold and Webb.)
· 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 U.S. persons, unless the information indicates a threat of death or serious bodily harm or the FISC determines the government has amended its defective procedures to conform with the law. (S.A. 3915, sponsored by Senators Feingold and Dodd.)
· 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 cooperated with the Bush Administration reasonably and in good faith. Plaintiffs would be entitled to appear before the court as well, and if the court found that the company did not act reasonably and in good faith, the company would remain in litigation and not be substituted. (S.A. 3927,sponsored by SenatorsSpecter and Whitehouse.)
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. (S.A. 3919, sponsored by Senators Feinstein, Nelson (FL) and Cardin.)
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.)