Commentary: Congress Looks Again at FISA

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The U.S. Constitution, Fourth Amendment

October 26, 2007 marks the sixth anniversary of the PATRIOT Act.

On October 9, 2007 Representative Rush Holt (D-NJ) argued, "What separates our government from the totalitarian ones we despise is that they spy on their citizens in the name of national security." Holt was speaking of his efforts in the House Intelligence Committee to repeal the hurriedly enacted August "update" of the Foreign Intelligence Surveillance Act (FISA), called the Protect America Act (PPA) with its six-month sunset clause. Holt's FISA Modernization Act of 2007 (H.R. 3782) would repeal the PAA and restore the requirement for individualized warrants for wiretapping Americans.

Pressure from the White House and heavy lobbying from telecommunications companies had civil libertarians saying that demands for secrecy and bypassing even the FISA court would weaken the Fourth Amendment.

Rep. John Conyers (D-MI) introduced the principal House rewrite of PPA, the RESTORE Act (H.R. 3773) on October 9, 2007. The acronym stands for "Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective." It had been marked-up and reported by the Judiciary Committee that Rep. Conyers chairs, with three amendments by October 10, and by the Intelligence Committee, with an additional three amendments that same day.

The measure troubled the American Civil Liberties Union for its inclusion of long-term program warrants that name none of the following: the targets of the search, the facilities that will be accessed, or what is going to be seized. Caroline Fredrickson, Director of the ACLU's Washington Legislative Office, said that such warrants are "the 21st century version of King George's heavy-handed intrusions on individual privacy. We would not tolerate allowing government agents to sit in our living rooms recording our personal conversations. We should not permit it simply because the government now has the capacity monitor remotely and without our knowledge."

The ACLU, as well as the Bill of Rights Defense Committee, preferred Rep. Holt's bill, which never made it to the House floor. Holt was able, however, to add the changes during the committee markup, and these changes would as follows:

• Require the Bush administration to "fully inform" Congress on all surveillance programs conducted since 9/11.

• Increase the number of Foreign Intelligence Surveillance Court (FISC) judges from 11 to 15; provide additional personnel to both the FISC and government agencies responsible for making and processing FISA applications; and create an electronic filing, sharing, and document management system for handling this highly classified data. The amendment would also mandate training in the FISA process.

• Require the Court to review and approve not only the targeting procedures and guidelines required under this Act, but also the application of those guidelines.

• Clarify that Foreign Intelligence Surveillance Act (FISA) is the sole statutory basis for domestic surveillance.

The RESTORE Act did not include the immunity that President Bush demanded for the telecommunications companies who had cooperated in his warrantless surveillance. The ranking member of the Intelligence Committee, Pete Hoekstra (R-MI) had offered a failed amendment to do so, and to permanently extend the PPA act. President Bush threatened a veto of RETORE without immunity, saying that the companies acted in good faith, believing that they were following the law.

A May 11, 2006 USA Today article, "NSA has massive database of Americans' phone calls" makes one wonder why these companies complied when "Qwest refused to help the NSA…. According to multiple sources…because it was uneasy about the legal implications of handing over customer information to the government without warrants." And while President Bush has justified his need for warrantless surveillance on the events associated with September 11, 2001, the October 11, 2007 publication of redacted documents in an insider trading case against former Qwest CEO Joe Nacchio indicated confirmation of his meeting with the NSA on February 27, 2001 (see CIPA document 9, page 4). At this time, Mr. Nacchio raised questions about the legality of a request to his company. This information calls into question the timeline for surveillance.

Scott Horton, a New York City human rights attorney and lecturer at Columbia Law School, concluded in his October 14, 2007 article, Quest, Another Political Prosecution?, posted on Harper's website,

"[that] in light of the current disclosures the question is exactly what secrets the court and the Government are trying to conceal? Using alleged national security concerns to deprive a criminal defendant of a robust defense undermines confidence in the entire legal process, and gives rise to an appearance of a court and government participating in a vendetta instead of administering justice. These disclosures have suggested improper conduct on the part of the government: first, that the contract award process was skewed to punish Qwest and its shareholders because of Mr. Nacchio's views - which were, in the view of most U.S. legal professionals, entirely correct. And second, they raise a fair issue whether the prosecution itself was not launched as an act of retaliatory malice. At this point, the number of such politically directed prosecutions is growing, and the Nacchio case may well be just another example."

Jack M. Balkan, Knight Professor of Constitutional Law and the First Amendment at Yale Law School and founder and director of its Information Society Project, studies the implications of the Internet, telecommunications, and the new information technologies on law and society. On October 14, 2007 he argued in his article, It's the Secrets Stupid: Why the FISA Immunity Debate is Important that "the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law."

Former FBI whistleblower Mike German, who worked on cases of domestic terrorism before joining the ACLU Washington Legislative Office as Policy Counsel on National Security, Immigration and Privacy in 2006, contradicted Rep. Hoekstra in an article by the conservative Cybercast News Service, "It is shameful of the administration to put families of soldiers in a political argument. There is no loophole to be closed....FISA has never restricted the military or NSA (National Security Agency) from conducting surveillance from foreign soil. They know if they are sitting in Iraq they don't have to come back to FISA."

German noted that the military waited three days after the kidnapping before seeking approval from the NSA, the Department of Justice (DoJ), and former Attorney General Gonzales and filing for a warrant.


Talking Point Memo's Spencer Ackerman had reported on September 20 from an unnamed source: "To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power…."That takes approximately five seconds to establish if you're going after an Iraqi insurgent." But Ackerman writes the source indicated that "Attorney General Alberto Gonzales was out of town; Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement 'had left the building'; and the other responsible official, Assistant Attorney General Kenneth Wainstein was not yet authorized to approve the emergency order."

The Democratic leadership pulled the RESTORE Act on October 17, after maneuvering by Eric Cantor (R-VA) threatened to scuttle the bill. Pamela Hess of the Associated Press wrote on October 17, "The amendment would have said nothing in the bill could limit surveillance of Osama bin Laden and terrorist organizations. While the Democratic bill, in fact, allows the unfettered surveillance of such groups, voting against it could make it seem as though a member of Congress were against spying on al-Qaida."

"Passage of the amendment would have sent the bill back to committee, effectively killing it. Democrats believed they were short of the votes needed to defeat the move."

The Senate Intelligence Committee marked up its bill, the FISA Amendment Act of 2007, on October 18, after insisting on a review of administration documents regarding domestic spying. According to an October 20 New York Times article, Wiretapping Compromise was months in the making, "The House Intelligence Committee, and the Judiciary Committees of both the Senate and the House, have not been allowed to see the secret documents: President Bush's orders authorizing the program, and Justice Department opinions laying out its legal basis….Dana Perino, the White House press secretary, said Friday that the Senate Intelligence Committee had gained access to the documents only after its leaders had indicated that they would grant immunity to the phone and Internet companies. 'To the extent of anyone else being able to see the documents,' Ms. Perino said, "I think that we'll wait and see who else is willing to include that provision…'"

While Senate Intelligence Committee chairman Jay Rockefeller (D-WV) found the documents sufficient to include retroactive immunity for the telecoms, he had expressed doubts about the surveillance program in a handwritten letter in 2003 to Vice President Cheney, stating that he was not a lawyer and had been prevented from consulting with counsel.

Another Intelligence Committee member, Russ Feingold (D-WI), who is a former practicing attorney, voted against the measure on October 18, along with Ron Wyden (D-OR), and issued this statement: "The documents made available by the White House for the first time this week only further demonstrate that the program was illegal and that there is no basis for granting retroactive immunity to those who allegedly cooperated. The one silver lining of the flawed FISA bill passed in August was that it had a 6-month expiration date. It would be shameful to miss this opportunity to fix the law. It is time for Congress to stand up for the rights of Americans and to defend the Constitution and the rule of law."

The measure is slated to go before the Senate Judiciary Committee, whose chairman, Patrick Leahy (D-VT) expressed reservations about immunity, according to The Hill: "[Administration officials] know that it was illegal conduct and that there is no saving grace for the president to say, 'Well, I was acting with authority….Otherwise there wouldn't be so much pressure on us to immunize illegal conduct by either people acting within our government or within the private industry."

Sen. Chris Dodd (D-CT) stepped into the fray against immunity, saying that he would put a hold on the measure. After rumors circulated that Senate Majority Leader Reid (D-NV) would not honor the hold, his presidential campaign emailed supporters, "Just last night, we heard there are plans to disregard Senator Dodd's intention to place a hold on a FISA bill that includes amnesty for telecommunications companies. That would be a pretty extraordinary move, but…if the hold is not honored, he is prepared to go to the Senate floor and filibuster."

Joe Biden (D-RI), another Senator running for the presidential nomination succinctly answered a question in an October 19 Washington Post online chat session with readers as follows:

San Francisco: Will you join Sen. Chris Dodd's hold and proposed filibuster on any FISA bill that includes retroactive immunity for telecoms? Thanks for joining us for this chat today, Sen. Biden, and thanks for the leadership you provide the Democratic Party and America.

Sen. Joe Biden: Yes

Presidential hopeful Senator Barack Obama emailed Greg Sargent at Talking Points Memo Election Central opposing immunity, but not explaining what steps he would take: "I have consistently opposed this Administration's efforts to use debates about our national security to expand its own power, whether that was on the Iraq war, or on its power grab to curb our civil liberties through domestic surveillance programs. It is time to restore oversight and accountability in the FISA program, and this proposal -- with an unprecedented grant of retroactive immunity -- is not the place to start."

Sen. Feingold issued a second statement on October 19: "If the bill that ultimately reaches the Senate floor includes immunity and does not adequately protect the privacy of Americans, I will fight it vigorously with every tool at my disposal."

If Congress passes a bill containing retroactive immunity, it will abort suits, such as the Electric Frontier Foundation's (EFF) Hepting v. ATT. In that case, both AT&T and the government unsuccessfully moved to dismiss the case. As the Electronic Privacy Information Center summarizes: "AT&T argued that it should be immune from suit because it was following government directives. The government argued that the case would reveal "state secrets," which would harm national security. In July 2006, U.S. District Judge Vaughn Walker [a George H. W. Bush appointee] issued a decision denying both motions. In dismissing AT&T immunity claims, Judge Walker said that AT&T could not have reasonably believed that the alleged surveillance activity was legal. In rejecting the government's secrecy argument, Judge Walker stated: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

On October 17, the EFF filed a related Freedom of Information Act (FOIA) suit seeking expedited processing and release of records from the Director of National Intelligence, concerning the agency's "efforts to push for changes to federal surveillance law and ensure that telecommunications companies are not held responsible for their role in warrantless government surveillance activities."

In a press release, EFF Staff Attorney Marcia Hofmann said, "Congress is debating amnesty for the telecoms right now -- amnesty that could imperil judicial review of a very controversial government program, as well as threaten class-action lawsuits that impact millions of Americans....We deserve to know what kind of lobbying has gone on behind the scenes before lawmakers make this critical decision."

EFF also filed on September 25 against the Department of Justice for withholding records on telecom lobbying (news release) and has launched a campaign for citizens to contact legislators. See: http://www.stopthespying.org/ .

A partial transcript of an interview with Cindy Cohn, EFF's lead counsel for Hepting by attorney Glenn Greenwald can be found posted in his blog entry of October 16. Greenwald has also posted an analysis of the late Senator Robert F. Kennedy's 1965 opposition to retroactive immunity for industry and an excerpt from an August 2007 interview with Sen. Chris Dodd regarding the assault on the Constitution.

While some reporters in the mainstream media, such as the AP's Hess, have depicted objections to the PPA versus support as a left-right issue, conservative groups such as the Cato Institute, the John Birch Society and The American Freedom Agenda have opposed that bill. According to attorney Scott Horton, the New York City Bar President Barry Kamins' October 16 letter to the House leadership contends that the PPA should expire because it has undermined FISA's core protections. Kamins also wrote concerning telecom immunity: "There is simply no lawful basis for the Administration's demand for such absolute immunity. It would encourage a culture of impunity for unlawful conduct that is entirely unacceptable."

In addition, the Constitution Project's Liberty and Security Committee, which spans the political spectrum from Paul Weyrich and Grover Norquist to John Podesta and David Cole advised Congress in an October 4 statement that, "many of the amendments to the Foreign Intelligence Surveillance Act (FISA) contained in the recently enacted Protect America Act (Pub. L. 110-55) are unnecessarily overbroad, undermine our constitutional system of checks and balances, and fail to sufficiently protect the privacy of the communications of Americans" and urged "Congress "not to reauthorize these overbroad and harmful provisions." The Constitution Project also sent a letter on October 4 advising Congress that it had the constitutional authority to enact rules for the Courts to reform the state secrets privilege "to protect the system of checks and balances, individual rights, national security, fairness in the courtroom" and that "it should do so."