Proposed FISA update would not give telecom companies legal protection Nick Juliano

Published: Tuesday October 9, 2007



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Print This Email This House introduces delayed proposal to amend foreign spying law House Democrats have refused to submit to Bush administration requests to save telecommunications companies that assisted in a warrantless wiretapping scheme from lawsuits or prosecution, and they want to require judicial approval for future efforts to spy on Americans. The latest demands were aired Tuesday in a proposed update to the Foreign Intelligence Surveillance Act, although it remains to be seen whether House leaders -- and their counterparts in the Senate -- will be able to stand firm in sticking to their demands. Earlier this year, President Bush signed a short-term surveillance law that exposed innocent Americans phone calls and emails to warrantless intrusion," House Judiciary Committee Chairman John Conyers said in a statement announcing the Democrats' proposal. "This bill shows that it is possible to protect civil liberties and fight terrorism at the same time. The proposed House bill offers some concession to the administration, and it includes fixes in surveillance that Democrats and Republicans agreed were needed, such as a clarification that no warrant is required to spy on strictly foreign-to-foreign phone calls and e-mails. Under the new law, the Attorney General or Director of National Intelligence would be authorized to receive blanket warrants to eavesdrop on several foreign intelligence targets who could call into the United States, but the bill would restore FISA court reviews of targeting procedures and steps taken to "minimize" Americans' exposure to surveillance. If an American is to become the "target" of surveillance, intelligence agencies would be required to seek an individualized warrant from the FISA court. The American Civil Liberties Union said that concession would allow "blanket warrants" to authorize the National Security Agency and other US intelligence services to gather information on untold numbers of Americans who may not be suspected of doing anything wrong. "The program can collect any communication as long as one leg of it is overseas," the ACLU said in a critique of the new proposal. "If Americans communications are swept up by this new, general program warrant, there is no requirement that a court actually review whether those communications are seized in compliance with the Fourth Amendment." A Democratic summary of the new bill says Director of National Intelligence Michael McConnell did not object to judicial oversight of targeting and minimization procedures. A DNI spokeswoman told RAW STORY that McConnell would not comment on pending legislation. When he testified before Congress last month, McConnell laid out three primary requests for the FISA update. His foreign-to-foreign clarification and basket warrant provisions were included, but Democrats did not bow to his requests that telecommunications be let off the hook for assisting in the warrantless wiretapping program since 2001. McConnell told congressional committees that basket warrants were needed because intelligence analysts can't know in advance whether a foreign target would be calling someone in the US. The ACLU was largely positive about bill, but it was dire in its warnings about the basket warrants' potential to violate Americans civil rights. "There has not been a surveillance program since FISA was created that allows massive, untargeted collection of communications that will knowingly pick up US communications on US soil without any suspicion of wrongdoing," the group said. "This creates novel and fundamental Fourth Amendment problems that Congress should seek to avoid instead of sanctioning. Going back to the court may be inconvenient, but doing so is just a matter or resources and protecting our Fourth Amendment rights is worth the cost." Since passing what many saw as a hastily crafted temporary FISA revision just before recessing in August, Democrats in the House vowed to assuage critics who saw that bill, the Protect America Act, as not doing enough to protect Americans' privacy rights. The House Intelligence and Judiciary committees on Tuesday released a summary of their latest effort to amend FISA, which would require repair shortcomings in intelligence-gathering efforts while ensuring that intelligence agencies do not target Americans without first getting individualized warrants. The proposal is known as the Responsible Surveillance That is Overseen, Reviewed and Effective (Restore) Act, and it is timed to expire Dec. 31, 2009, when Congress also would revisit the Patriot Act. Before the announcement Tuesday, the New York Times published a bleak assessment of the chances for success of a bill like the one Democrats have proposed. Although the act would include several provisions requested last week by progressive lawmakers, it does not include must-have items demanded by President Bush, such as telecom immunity, and Democrats are unlikely to be able to corral enough votes to override a presidential veto. Civil liberties and privacy-rights activists have been lobbying intensely for Democrats to stand firm against immunity for telephone and Internet providers who are alleged to have granted National Security Agency spies access to domestic communications switches, and they appear to have scored a small victory with Tuesday's announcement. House leaders were expected to announce their proposal last week but held off after the House Progressive Caucus released its list of needed reforms in a FISA update, such as a sunset provision and refusal to grant immunity to telecom companies, which were included Tuesday. The Protect America Act expires in February, and Democrats are facing pressure from the White House to pass a permanent measure soon. Congress is expected to send its FISA revision to the president before the end of the year. # The House Intelligence and Judiciary committees released the following summary of their proposal: RESTORE Act of 2007 (Responsible Surveillance That is Overseen, Reviewed and Effective) Bill Summary Security and Liberty: The bill provides the Intelligence Community with effective tools to conduct surveillance of foreign targets outside the United States but restores Constitutional checks and balances that were not contained in the Protect America Act (PAA--the Administrations FISA bill.) The RESTORE ACT: Clarifies that No Court Warrant is Required to Intercept Communications of Non-United States Persons When Both Ends of the Communications are Outside the United States. Requires an Individualized Court Warrant from the FISA Court When Targeting Persons in the United States. (Same as current law.) Creates a Program of Court Authorized Targeting of Non-U.S. Persons Outside the United States. Grants the Attorney General (AG) and the Director of National Intelligence (DNI) authority to apply to the FISA Court for an order to conduct surveillance of foreign targets, or groups of targets, for up to one year  but RESTORES the following checks and balances that were absent under the PAA: a. Court Review of Targeting Procedures. The FISA Court must review targeting procedures to ensure that they are reasonably designed to target only people outside the United States. In emergencies, the FISA Court review may take place after the surveillance has begun  for up to 45 days. DNI McConnell told Congress in September that he did not oppose FISA Court review of these targeting procedures. b. Court Review of Minimization Procedures. The FISA Court must review minimization procedures. DNI McConnell told Congress in September that he did not oppose FISA Court review of these minimization procedures. c. Court Review of Guidelines to ensure that, when the government seeks to conduct electronic surveillance of a person in the United States, the government obtains a traditional individualized warrant from the FISA Court. Clarifies Ambiguous Language on Warrantless Domestic Searches. The bill clarifies and eliminates ambiguous language in the PAA that appeared to authorize warrantless searches inside the United States, including physical searches of American homes, offices, computers, and medical records. In a letter to Congress in September, Administration officials indicated that they did not intend their legislation to authorize such warrantless domestic searches and expressed a willingness to consider alternative language. A RESTORE ACT Authorization May Not Be Used to Target Any Known U.S. Person. If the government learns that the target of surveillance is a U.S. person (say, an American traveling abroad), it cannot use this new authority. Assistant Attorney General Ken Wainstein acknowledged to Congress in September that the PAA could be used by the Administration to target Americans abroad without a warrant, even U.S. soldiers serving in Iraq and Afghanistan. Limits Authority to Terrorism, Espionage, Sabotage, and Threats to National Security. The Administrations bill allowed for surveillance for all foreign intelligence, including a broad category of information related to foreign affairs. This bill allows the Intelligence Community to deal with the threats facing the United States from terrorism, espionage, sabotage, clandestine intelligence activities, and to collect information related to the national defense or security of the U.S., without authorizing the collection on the broad category of foreign affairs. Requires Quarterly Audits and Reports. Requires quarterly audits by the Justice Department Inspector General (DOJ IG) on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection. These audits would be provided to the FISA Court and to Congress (Intelligence and Judiciary Committees.) The Administrations bill contained very limited reporting to Congress. During testimony, DNI McConnell said he did not oppose an Inspector General audit of the program to determine the scope of American communications swept up by this authority. Requires an Audit of the Presidents Surveillance Program and Other Warrantless Surveillance Programs. This audit mandates a report and documents related to these programs be provided to Congress in unclassified form with a classified annex. Requires Record-keeping of the Use of United States Persons Information. Mandates that the Executive Branch record every instance in which the identity of a United States person whose communication was acquired by the Intelligence Community is disseminated to an element or person within the Executive Branch and that it submit an annual report to Congress on the dissemination. Adds Resources for FISA. Adds funding for personnel and technology resources at DOJ and NSA to speed the FISA process and to ensure that audits can be conducted expeditiously. Reiterates the Exclusivity of FISA. Includes House-passed bipartisan Schiff-Flake language stating that FISA is the exclusive means to conduct electronic surveillance of Americans for the purpose of foreign intelligence collection. No Retroactive Immunity. The bill is silent on retroactive immunity because the Administration has refused to provide Congress with documents on the specifics of the Presidents warrantless surveillance program. However, the bill does provide prospective immunity for those complying with court orders issued pursuant to this authority. Establishes En Banc Review. Allows the FISA Court to sit en banc. The FISA Court requested this, and the Administration does not oppose it. Provides Sunset, Transition Procedures and Report on PAA. Sunsets this new authority on December 31, 2009, when certain PATRIOT Act provisions sunset. However, the legislation will allow for a transition from the existing warrants to the new ones to ensure that the Intelligence Community does not go dark on any surveillance. The Administration will be required to submit a report on U.S.-person information collected and disseminated under the PAA authorities.



