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November 20, 2007

Senate Judiciary Improves But Doesn’t Perfect FISA Amendments Act

This message supplements and enhances today’s Downsizer-Dispatch (and so we recommend you read it first).


The Senate Judiciary Committee completed their “markup” of the FISA Amendments Act (FAA) last week, and issued a bill. The Chairman, Patrick Leahy of Vermont, made a “strong move,” using his power as Chair, to amend the language on his own.

Leahy and the Judiciary Committee deserve some applause. Together, they adopted a series of amendments to the FISA Amendments Act that made significant improvements to the bill. Yet they rejected every amendment offered to weaken the civil liberties protections in the bill. Here are some of the improvements:

1. They struck the redefinition of “electronic surveillance” that was in the original bill. This will, among other things, ensure that civil and criminal penalties in FISA will remain intact in the face of illegal spying conducted under the new FAA. The Administration hates this. They want to create immunity for those times when they act with impunity.

2. The President has, in the past, invoked Article II “Commander-in-Chief” powers to conduct electronic surveillance in the U.S. in violation of statutory requirements. That excuse was cut off by a Judiciary amendment. The bill restores FISA as the exclusive means of conducting intelligence wiretapping in the U.S.

And in those rare cases where the law permits communications spying without a court order, it requires that a specific section of the law permitting this new case of spying be identified to the communications provider that must execute the surveillance demand, AND that the government certifies that the statutory requirements for that warrantless surveillance have been met. So it’s now explicit. “Because the President asks you to,” is no longer a reason for telecommunications companies to turn over access to communications.

Of course, opposed warrantless wire surveillance in all cases, but this is also an improvement over where we thought we were even a week ago. No longer will the telecommunications companies be able to decide, on their own, to cooperate with broad, vacuum sweeps of tens of thousands of individuals.

3. The Judiciary version also prohibits the excuse that Congress modified FISA provisions, by inference, when it passed the Authorization to Use Military Force after the 9-11 attacks. This was a stretch to begin with, but the Judiciary mark-up version destroys all ambiguity.

4. To explain this next point, first, we must provide a definition. “Minimization” is intended to (at least to some degree) protect the privacy of intercepted communications about or involving Americans. The Judiciary version strengthens Minimization by allowing the FISA court to assess whether the government is complying with the minimization procedures the court has approved. That seems like common sense, but the Protect America Act (PAA – hastily passed in August and due to sunset in February) didn’t permit that.

5. Let’s say that government messes up on minimization or other procedures, violates someone’s privacy, or in the rare case that their warrant is turned down: What happens then? Well, the Administration wanted to make the decision on whether the spying could continue while the appeal was being considered. But Judiciary’s bill clarifies that the FISA court, not the Administration, will decide whether acquisitions of communications can continue while the Administration appeals a decision of the FISA court.

6. Judiciary’s version REQUIRES an audit of the Terrorist Surveillance Program (TSP) and any closely related intelligence activities by the Inspector General of the Department of Justice and the IGs of the relevant elements of the Intelligence Community. This audit provision requires that legal memoranda, authorizations, certifications to communications carriers, and other documents relating to those activities be provided to Congress. And this is important, because Congress has been kept in the dark about large parts of this program. This alone might be sufficient reason for the President to veto – potentially good news. (See Veto section below)

7. The original bill had a six year sunset provision. An attempt to shorten it to two years failed, but an attempt to shorten it to four, passed. We would’ve preferred two years, and one year would be even better yet. But four years is an improvement over where we were a week ago.

8. Last, but certainly not least, is the “particular persons” amendment. Judiciary amended the bill to prevent bulk collection of communications of persons abroad, choosing instead to require targeting of particular persons communications. Because it requires targeted collection only, the amendment effectively prohibits what has been described as, “sitting on the line and collecting everything.” This vastly improves the bill, all by itself.

(Thanks to Gregory Nojeim, of the Center for Democracy and Technology, who was our primary source for this information.)


The President is threatening to veto this bill. That might be good too. But we can’t, frankly, count on that being a good outcome. Based on their recent track record, Congress will, almost certainly, feel pressure to “do something, do anything,” to win the President’s support and show that they too are tough on terrorism.

The Democrats have not been effective at standing up to the President, and this issue is a classic example. Legislation similar to the PAA did NOT pass in the last year of the Republican Congress. But it did with Democrats at the helm.

While we would still want the President to veto either the Senate Judiciary mark-up version of the bill OR the House’s RESTORE Act (even though they represent improvement), the political risk that Congress will respond by doing the wrong thing is very, very real.

Right now, as explained in today’s Downsizer-Dispatch, Telecom Immunity is our key concern. Please read that Dispatch and take action.

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