The House of Representatives today passed a bill revising the law on foreign intelligence wiretaps . The bill is H.R. 6304, or The FISA Amendments Act of 2008. It passed the House by a vote of 293-129 and the Senate is expected vote on it next week.
The deal, expanding the government’s powers to spy on terrorism suspects in some major respects, would strengthen the ability of intelligence officials to eavesdrop on foreign targets. It would also allow them to conduct emergency wiretaps without court orders on American targets for a week if it is determined that important national security information would otherwise be lost. If approved by the Senate, as appears likely, the agreement would be the most significant revision of surveillance law in 30 years.
The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determined that they received legitimate requests from the government directing their participation in the program of wiretapping without warrants.
The bill was the subject of much controversy and its passage is considered a big victory for the White House. Rep. Diana DeGette was the only one of our seven Congresspersons to vote against the bill. She issued this statement explaining her position.
“While H.R. 6304 is an improvement over our previous efforts, it still prevents the American public’s ability to hold telecommunications companies accountable for participating in the Federal Government’s domestic warrantless surveillance program. Courts still have no real power to review the Administration’s prior orders for surveillance activities. We may never learn the extent of the violations of Americans’ privacy which may have occurred or companies which may have participated.
“Additionally, the strong protections against reverse targeting contained in prior House measures, which I supported, are absent from this bill. Reverse targeting, which refers to spying on Americans by targeting those abroad with whom they are believed to be communicating, opens a loophole for the Federal Government to violate the privacy of American citizens.”
Colorado’s other six congresspersons voted for it. Here is Rep. Mark Udall’s statement.
More interesting is Rep. Ed Perlmutter’s statement:
[The bill] increases our nation’s security by ensuring there is no gap in intelligence collection against terrorists, while protecting our civil liberties by preventing the government from surveilling our citizens without a lawful warrant. This bipartisan compromise also increases oversight of intelligence activities, rejects automatic immunity for telecommunications companies, and contains a 2012 sunset so Congress can further improve it under the next Administration.
While I opposed previous attempts to change FISA…..after extensive legal review of the bill, I am satisfied this legislation prevents any President from using executive power to conduct warrantless domestic surveillance. Finally, this new bill does not grant any criminal immunity to telecom companies or the government.
1. The new FISA legislation clarifies that the government must first obtain an individual warrant from the FISA Court based on probable cause (which is standard criminal procedure).
2. Furthermore, the bill we passed today does not allow any warrantless domestic physical searches of homes, offices, etc. Requires that surveillance be conducted in accordance with the Fourth Amendment
3. Regarding telecom immunity â€“ the new FISA does not grant immunity to telecom companies. It requires a Federal District Court (which is more open and transparent than FISA courts) to determine whether a telecom company violated the law or not. The burden is on the telecom company to prove they did not violate the law.
Because these additional safeguards to protect individual liberty and not let telecoms off the hook were added and strengthened, I decided I could support this legislation which also provides our intelligence community with the proper, legal tools they need to help keep our country safe and secure.”
As to the telecom immunity issue, the New York Times (linked above) views the law differently than Rep. Perlmutter:
The proposal allows a district judge to examine what are believed to be dozens of written directives given by the Bush administration to the phone companies after the Sept. 11 attacks authorizing them to engage in wiretapping without warrants. If the court finds that such directives were in fact provided to the companies that are being sued, any lawsuits “shall be promptly dismissed,” the proposal says.
Even Democratic officials, who had initially opposed giving legal immunity to the phone companies, conceded there was a high likelihood that the lawsuits would have to be dismissed under the standards set out in the proposal.
One of the groups involved in current telecom immunity litigation says:
“No matter how they spin it, this is still immunity,” said Kevin Bankston, a senior lawyer for the Electronic Frontier Foundation, a pro-privacy group that is a plaintiff suing over the wiretapping program. “It’s not compromise; it’s pure theater.”
Who’s right? Here’s the language of the bill on telecom immunity:
Title VIII, “Protection of Persons Assisting the Government.” Section 802(a) provides:
[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was —
(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States” and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was– `(i) authorized by the President; and `(ii) determined to be lawful; or
As much as I admire Rep. Perlmutter, I have to take issue with his statement. First, the telecom company provision most assuredly does not say the court will determine if the company violated the law. It says the court will determine if the telecom company complied with the surveillance request only after receiving a statement in writing from the Attorney General or the appropriate official of an intelligence agency claiming that the President authorized the activity and it was lawful.
Just because the Attorney General or an intelligence official says something is lawful doesn’t make it so. The Court, in considering whether to allow a lawsuit against a telecom company, isn’t going to determine whether the telecom company violated the law — it is only going to determine whether the company acted after receiving a notice advising the requested surveillance was lawful. If the telecom company got the notice, any lawsuits against it will be dismissed. There will be no judicial determination that the President authorized the surveillance or that the surveillance was lawful — or that the company illegally turned over more information on its customers than it should have — only that if the company got the notice, it’s off the hook, regardless of the legality of its surveillance activities.
The ACLU of Colorado previously requested (pdf) the Colorado Public Utilities Commission to conduct an investigation (pdf) into alleged misconduct by telecom companies in Colorado. That request will now never be addressed. Why? Because another portion of the bill says:
No State shall have authority to– `(1) conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community; (2) require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community; `(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or `(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
As Cathryn Hazouri, Executive Director of the American Civil Liberties Union of Colorado, said today after the House passage of the bill (received by e-mail, no link yet):
“Today the House gave the Bush Administration and the telephone companies a sweetheart deal that makes a mockery of our Fourth Amendment right to privacy,” said Hazouri “Now Coloradans may never know if our privacy was violated by the Bush Administration.”
….”With a note from the Attorney General, the telephone companies get automatic immunity, meaning they and the Bush Administration will no longer be held accountable for breaking the law,” said Cathryn Hazouri, Executive Director of the American Civil Liberties Union of Colorado. “The worst part is that the House voted today to ensure that warrantless surveillance isn’t just part of our past – it’s in our future too.”
Telecom immunity is only one of the problems with the bill. Another problem I have with Rep. Perlmutter’s statement is his assertion that the bill only allows electronic surveillance and searches with a court order. The current FISA statute contains a three day emergency exception. The bill passed today expands the time period the Government can conduct electronic surveillance without a court order to seven days. Section 107 of the newly passed bill contains exceptions to warrants for physical searches in “emergency situations.”
Also, according to Hazouri and the ACLU of Colorado,
The bill permits the government to conduct untargeted mass surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where the wiretaps will happen. H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs during the appeals process even if the application is denied by the court.
From the press release of the national office of the ACLU:
“The courts’ role is superficial at best, as the government can continue spying on our communications even after the FISA court has objected. Democratic leaders turned what should have been an easy FISA fix into the wholesale giveaway of our Fourth Amendment rights…The House should be ashamed of itself. The fate of the Fourth Amendment is now in the Senate’s hands. We can only hope senators will show more courage than their colleagues in the House.”
In other words, today’s FISA bill does not, as Rep. Perlmutter says, comply with the Fourth Amendment. It’s an end run around it.
For me, the biggest problem with the new FISA law is simply this: There was nothing wrong or inadequate with the existing FISA law. If the cart ain’t broke, don’t fix it. Congress should have just left it alone.