THE "FACTS STRIKE BACK" ON FISA 50 Myths Exposed: The December 17, 2007 Senate Filibuster TABLE OF CONTENTS I. Terrorist Surveillance Program II. FISA as the Exclusive Means to Conduct Electronic Surveillance III. Foreign Targeting IV. Liability Protection V. The House RESTORE Act VI. Senate Judiciary Committee Substitute VII. SSCI Bill, S. 2248 VIII. Calls Involving U.S. Citizens IX. Foreign Intelligence Surveillance Court X. The Protect America Act I. Terrorist Surveillance Program Myths Facts 1) The main justification for the Terrorist Article II of the United States Constitution Surveillance Program (TSP) was the gives the President the authority to conduct Authorization for the Use of Military Force warrantless surveillances to collect foreign (AUMF). (Dodd, p. 12) intelligence information. There is nothing new or aggressive about relying on Article II 2) The Administration now argues that the authority in the context of foreign intelligence TSP was grounded in the "extremely surveillance. Courts, including the FISA Court nebulous authority of the President to of Review in the In Re Sealed Case decision defend the country" that they find in the (2002), and the 4th Circuit in the Truong case, Constitution. (Dodd, p. 12) among others, have long recognized distinctions between domestic and foreign 3) We need full hearings on the TSP before surveillance--and the President's authority to the Intelligence and Judiciary Committees. conduct foreign intelligence surveillance. The (Dodd, p. 14; Boxer, p. 53; Feingold, p. Clinton Administration recognized this 115) authority when it conducted a warrantless search of Aldrich Ames' residence in 1993. It 4) It is clear that the Administration made a is this Article II authority that always has been big mistake in not using FISA in the first the foundation and main justification for the place. A FISC judge proved earlier this President's Terrorist Surveillance Program year that the TSP could be done under (TSP), initiated in the wake of the September FISA. (Feinstein, p. 62, 65) 11th terrorist attacks. 5) The White House and the Department of As reflected in its report accompanying S. Justice (DoJ) relied on a new and 2248, the Senate Select Committee on aggressive interpretation of the President's Intelligence (SSCI) has done a thorough, Article II authority, a new and expanded comprehensive, and non-partisan review of the view of Presidential authority. (Feinstein, TSP, holding numerous hearings and briefings p. 62) on the TSP and telecom carrier liability. Given the sensitivity of the TSP, the SSCI is the only 6) New reports suggest that the Committee with jurisdiction that is capable of Administration began its warrantless conducting full hearings. The National spying even before 9/11. In clear violation Security Agency (NSA) Inspector General, of FISA and the Fourth Amendment, it who has the necessary expertise, has also never told the FISC what it was doing. We conducted oversight of the TSP since 2002. still don't know how deeply the TSP For these reasons, an historical Inspector invaded the privacy of millions of innocent General audit of the TSP is unnecessary. Americans. (Kennedy, p. 69) Exactly what the Foreign Intelligence 7) Numerous reports indicate that the TSP Surveillance Court (FISC) knew about the TSP covered not only international calls, but cannot be stated publicly, but any Senator can domestic calls with friends, neighbors, and come to the SSCI for a briefing on that issue. loved ones. (Kennedy, p. 70) 8) The DoJ legal opinions on the TSP were There is no evidence to substantiate claims "flimsy." The opinions are being classified about warrantless spying on Americans prior to to protect the President's political security, the 9/11 terrorist attacks. Nor is there any not our national security. (Wyden, p. 82) evidence to substantiate the claim that the TSP covered domestic calls between friends, 9) An audit of the President's illegal neighbors, and loved ones. As the President wiretapping program by relevant inspectors has stated, the TSP involved the collection of general is long overdue. (Feingold, p. 112) international calls involving members of al Qaeda. Some argue that the TSP should have been conducted under the Foreign Intelligence Surveillance Act (FISA). A decision by a FISC judge this past spring, however, proved that the TSP could not be done under FISA as it existed at that time. This decision resulted in significant intelligence gaps and led to the need for, and passage of, the Protect America Act (PAA). Some Senators have made negative comments about the legal reasoning by DoJ in support of the TSP. In turn, such comments have been used to argue against any liability protection for the carriers who allegedly assisted the Government. Although one or two Members of Congress who have reviewed the opinions question DoJ's analysis, I have reviewed the opinions and found them soundly reasoned. Because the TSP involved highly sensitive sources and methods, the DoJ legal opinions are classified and their contents cannot be discussed publicly. II. FISA as the Exclusive Means to Conduct Electronic Surveillance Myths Facts 10) Congressional intent from 1978 is clear. The Constitution is the highest law in the land Congress clearly intended for FISA to be and trumps any statute. It is false to suggest the exclusive means under which the that the President has no inherent constitutional Executive branch could conduct electronic authority to conduct warrantless surveillance surveillance. (Feinstein, p. 64) for foreign intelligence purposes because Congress tried to limit it in FISA. Congress in 11) "But the Bush Administration apparently 1978 recognized the tension between the Act it decided that FISA was an inconvenience." was creating and the President's inherent (Kennedy, p. 70) authority under Article II. 12) Arguing that the President has inherent Because Congress cannot by legislation constitutional authority to wiretap without exterminate a President's constitutional power, a court order is "an invitation to if Congress wanted to go further, the lawlessness." (Feingold, p. 115) Constitution would have to be changed. 13) Congress has spoken very clearly in FISA Warrantless surveillance for foreign and limited the President's power to intelligence collection has been an integral part conduct surveillance. The President must of our nation's foreign intelligence gathering. follow the law that Congress passes. During World War II, our warrantless (Feingold, p. 115-116) surveillance of the German and Japanese militaries and the breaking of their codes 14) Warrantless spying threatens to undermine preserved our democracy. our democratic society unless legislation brings it under control. (Dodd, p. 16) III. Foreign Targeting Myths Facts 15) The SSCI bill permits the Government to The SSCI bill only allows targeting of persons acquire foreigners' communications with outside the U.S. to obtain foreign intelligence Americans inside the United States, information. This is not a new form of regardless of whether anyone involved in surveillance; the NSA has been doing this the communication is under any suspicion since its inception. Nor is it dragnet of wrongdoing. There is no requirement surveillance. The targets of acquisition must that the foreign targets of this surveillance be foreign targets (e.g., suspected terrorists or be terrorists, spies, or other types of spies) and the Attorney General and the criminals. (Feingold, p. 33) Director of National Intelligence (DNI) must certify that a significant purpose of the 16) Many law-abiding Americans who acquisition is to obtain foreign intelligence communicate with completely innocent information. For example, if a foreign target is people overseas will be swept up in this believed to be an agent or member of al Qaeda, new form of surveillance. (Feingold, p. 33; then all the communications of that target Kennedy, p. 67) could be intercepted. 17) We are talking about a huge dragnet that Since the acquisition is targeted against will sweep up innocent Americans. suspected terrorists and the vast majority of (Feingold, p. 33) intercepts are overseas, only Americans who communicate with those suspected terrorists 18) "Parents of children call family members will have those specific communications overseas. Students e-mail friends they have monitored. If those same communications turn met while studying abroad . . . We are out to be innocent, they will be "minimized," going to give the Government broad new or suppressed, so that Americans' privacy powers that will lead to the collection of interests are protected. It is misleading to much more information on innocent suggest that the Intelligence Community is Americans." (Feingold, p. 33) spying on parents who are calling their children overseas, on students who are talking 19) The SSCI bill has an enormous problem: with their friends, or on our soldiers on the the complete lack of incentives for the battlefield. Our intelligence professionals are Government to target people overseas busy tracking real terrorists, members of al rather than people in the United States. Qaeda, not listening to family discussions or (Feingold, p. 112) conversations between classmates. As a practical matter, if the Intelligence Community becomes interested in the communications of a person in the United States, they seek a Title III criminal warrant or a FISA order to intercept all of the communications of that person, not just the communications with the target overseas. IV. Liability Protection Myths Facts 20) The President is wrong to claim that failing In his original FISA modernization request, to give retroactive immunity will make the made in April 2007, the DNI asked for full telecoms less likely to cooperate in the liability protection for all those allegedly future. (Dodd, p. 19) involved in the TSP. The SSCI weighed the arguments in favor of and against liability 21) We are talking about protecting companies protection. In its considered judgment, the that complied with surveillance requests SSCI determined that civil liability protection they knew were illegal; it is premature to for the providers was not only fair, but it was be talking about this subject. (Kennedy, p. the only way to safeguard our intelligence 70) sources and methods and to ensure that the providers would be willing to cooperate with legitimate requests in the future. The SSCI has 22) The President is demanding immunity determined that the companies that allegedly without telling all Members of Congress assisted the Government with the TSP acted in which companies broke the law, how they good faith and relied upon representations from broke the law, or why they broke the law. the highest levels of Government that the He is asking Congress to legislate in the program was lawful. Further, because the dark. (Kennedy, p. 71) Government has asserted the state secrets privilege, the companies cannot prove that they 23) The Administration has used the scare are entitled to statutory immunity. The use of tactic of claiming that lawsuits will the term "amnesty" is incorrect in this context jeopardize national security by leaking because it assumes that the alleged carriers did sensitive information. The media has something illegal. These carriers deserve already exposed the TSP and it would be liability protection, not amnesty. foolish to assume that terrorists don't already know we are trying to intercept The documents that are most relevant to their communications. (Kennedy, p. 71; whether the providers acted in good faith are Dodd, p. 15) the letters from the Government to the providers. The SSCI read these letters several 24) It is sheer nonsense to suggest that months before the Committee's vote on its bill. allowing the lawsuits to proceed might The providers never saw the DoJ legal jeopardize national security by deterring opinions or Presidential authorizations that future cooperation. The companies already were made available to the SSCI shortly before have full immunity under FISA. (Kennedy, the vote. p. 71; Feingold, p. 113; Dodd, p. 15) Although the media exposed the TSP, it is 25) Voting for amnesty will be a vote for important to remember that anyone who served silence, secrecy, and illegality. (Kennedy, as a source for that article violated the law and p. 72) their oath to protect and defend the Constitution of the United States. While it is 26) After the SSCI dealt with the true that the existence of the TSP has been Administration's original concern that revealed, details about the program have not. FISA needed to be modernized, the Each day that these lawsuits continue--with Administration asked for something else-- the prospect of civil discovery--brings new this total grant of immunity. (Wyden, p. risks that sensitive details about our 83) intelligence sources and methods will be revealed. As General Hayden stated, the 27) Substitution will give the carriers the disclosure of the TSP has had a significant protection of the courts and the impact on intelligence collection. We should Government can control the case for not give terrorists any additional insight national security purposes. (Cardin, p. 110) through continued TSP litigation. Substitution does not give the carriers adequate protection. Civil discovery would still be allowed to proceed against them, thereby 28) Arguments in favor of immunity are false exposing them to further harm and further and misleading: e.g., supporters claim that risking disclosure of our sources and methods. only foreign communications, not As evidenced by the ongoing litigation, and the domestic, were targeted; lack of immunity court's refusal to accept the state secrets will make telecoms less likely to cooperate; assertion, the Government cannot always telecoms cannot defend themselves without control the case for national security purposes. exposing state secrets; telecoms are already Some Senators have claimed that the protected by common law principles; leaks arguments in favor of immunity are false and from trial could damage national security; misleading. Such statements reflect a startling and telecoms will suffer damage to lack of knowledge about the electronic reputation and business. (Dodd, p. 123- surveillance conducted by our Intelligence 125) Community and the vital role played by providers. These points were resolved in favor 29) Retroactive immunity could prevent the of immunity by the SSCI in its bipartisan 13-2 courts from ruling on the TSP, one of the bill. Our intelligence and law enforcement worst abuses of executive power in our agencies rely on the willingness of providers to Nation's history. (Feingold, p. 115) cooperate, including in emergencies (as with the kidnapping of a child). Court orders are 30) If we grant immunity, we will make the not always required for collection (e.g., 50 same mistakes we made with the USA U.S.C. § 1802(a), consent searches, etc.). Yet, PATRIOT Act. The PATRIOT Act was some carriers already have told us that if they passed without sufficient time to consider are not given liability protection, they will be its implications and not enough was done unwilling to help without court orders or to fix it during the reauthorization period. compulsion. As a result, three courts have struck down provisions as being unconstitutional. The SSCI civil liability provision applies only (Feingold, p. 36) to providers. It does not apply to any Government officials. There currently are 31) DNI Mike McConnell is becoming "an seven cases related to the TSP that are pending accidental truth-teller" when it comes to against Government officials. These cases will carrier liability protection. (Dodd, p. 20) continue. DNI McConnell has served his country honorably in many positions. Throughout this debate, he and other intelligence professionals who will have to implement the law that we pass gave unbiased advice and technical assistance. They assisted Democrats and Republicans in order to ensure that the Intelligence Community has the tools it need to protect us, including the continued cooperation of our private partners. Attacking his integrity to score political points is unseemly and unjustified. Provisions in the PATRIOT Act broke down the walls between criminal and intelligence information sharing. All but two provisions were reauthorized permanently after an extensive review by Congress. The three cases in which certain provisions have been declared unconstitutional are still pending appellate review. V. The House RESTORE Act Myths Facts 32) The House RESTORE Act takes a The RESTORE Act's unreasonable restrictions balanced approach to civil liberties and on collection and use of information would national security and gives the Intelligence shut down our intelligence agencies. It Community "great flexibility" to conduct requires prior court approval to target foreign surveillance on overseas targets. (Leahy, p. terrorists overseas, but seeks to maintain the 138) unworkable distinction of foreign to foreign communications--we cannot know whom a terrorist target is calling when intercepts are initiated. It limits the type of foreign intelligence information that may be collected or disseminated, to exclude any information about the foreign affairs of the United States. It mandates a two-year sunset and requires the FISC to assess compliance with targeting procedures and guidelines. It does not provide any form of retroactive liability protection for those providers who allegedly assisted with the TSP. As a result, the DNI has stated that he cannot support the RESTORE Act. VI. Senate Judiciary Committee Substitute Myths Facts 33) The Judiciary Committee made critical While the Judiciary Committee may have improvements to ensure independent "wanted to" make sure that the Intelligence judicial oversight of sweeping new powers Community has the tools it needs, the SSCI and to better protect innocent Americans. actually did so. The DNI has advised that if (Feingold, p. 32) the Judiciary Committee Substitute is part of the bill sent to the President, he will 34) The Judiciary Committee wanted to make recommend a veto, as the "improvements" that sure that the bill gives the Intelligence the Judiciary Committee made to this bill will Community the tools it needs, particularly ensure that the Intelligence Community does with respect to foreign to foreign not have the tools it needs to track effectively communications. (Cardin, p. 109) terrorists and spies. 35) The differences between the SSCI and The differences between the two bills have Judiciary bills have nothing to do with "our everything to do with the ability to combat ability to combat terrorism." (Feingold, p. terrorism. The SSCI bill was coordinated with 111) Intelligence Community experts and operators to ensure that there were no unintended 36) The Judiciary Committee process was consequences. The DNI has stated that he will better than the SSCI's as it was open and support the SSCI bill, with amendments to two allowed outside experts and the public at provisions, because it gives him the tools large to review and comment. (Feingold, p. needed to combat terrorism. In contrast, the 34, 111; Leahy, p. 137) opinions of Intelligence Community experts were not factored into most of the controversial provisions in the Judiciary bill. As a result, the Judiciary Committee Substitute would gut our intelligence collection capabilities. For example, the Judiciary Committee bill would replace the judgment of trained intelligence analysts with that of FISC judges. The FISC itself recognized in a published opinion on December 11, 2007, that only the Executive branch has the necessary expertise in the national security arena. In addition, the exclusivity provision in the Judiciary bill would prohibit the use of grand jury subpoenas and other law enforcement or intelligence tools to obtain foreign intelligence information. Finally, by inserting an unnecessary prohibition against bulk collection, the Judiciary Committee bill creates operational and legal impediments that could shut collection down. As we learned from the PAA process and the House RESTORE Act, the focus on "foreign to foreign communications" is misplaced. It is not always possible to tell if a communication is going to travel from a foreign target to another foreigner. Thus, the collection could not begin or court orders would be required beforehand in all instances. VII. SSCI Bill, S. 2248 Myths Facts 37) The SSCI bill's safeguards against abuse, The SSCI bill was crafted carefully with against the needless targeting of ordinary Intelligence Community experts to ensure that Americans, are far too weak. The bill there were no unintended operational concentrates far too much power in the consequences. Independent outside experts on hands of the Administration. (Dodd, p. 60) FISA and national security were also consulted. This bill goes farther than ever 38) Problems with the SSCI bill: redefinition of before in providing a meaningful role for the electronic surveillance is unnecessary; courts and Congress in overseeing these there are no consequences if the FISC acquisitions. There are express prohibitions rejects the targeting/minimization against "reverse targeting" and the targeting of procedures; it does not contain a "reverse a person inside the United States without a targeting" prohibition; it allows warrantless court order. Americans abroad are given new interception of purely domestic protections. The acquisitions must also communications; and it does not require an comply with the Fourth Amendment. independent review of the TSP. (Kennedy, p. 68; Feingold, p. 112-113) The clarification of the definition of electronic surveillance is necessary to ensure that the 39) Five flaws with the SSCI bill: safeguards activities authorized are not erroneously against targeting Americans (its considered electronic surveillance under Title I minimization procedures) are insufficient; of FISA. The FISC will review the targeting fails to protect Americans from "reverse and minimization procedures to ensure that targeting;" might actually allow warrantless they comply with the law. If the FISC finds wiretapping of Americans to continue deficiencies in the procedures, it can order the because it lacks strong exclusivity Government to correct the deficiency or cease language; lacks strong protections against the acquisition. bulk collection; and has a 6-year sunset. (Dodd, p. 87-88) The SSCI bill reiterates the 1978 FISA exclusivity provision. There is nothing in this bill that will allow the warrantless wiretapping of Americans in violation of Title III (criminal wiretaps) or FISA. The targeting allowed by this bill is not dragnet surveillance--it is targeted at foreigners outside the United States. A 6-year, or longer, sunset is necessary to give the Intelligence Community enough certainty in the tools and authorities it has to track terrorists and spies. VIII. Calls Involving U.S. Citizens Myths Facts 40) It is essential to our freedom to require a It is operationally impossible to require a court FISC order to continue surveillance when a order any time a call involves a U.S. citizen. call involves U.S. citizens. (Boxer, p. 53) For thirty years, the Intelligence Community has used minimization procedures when inadvertently intercepting calls to or from non- target U.S. persons. "Minimization" means that intercepts that have no terrorism value will be suppressed; that is, they will not be used or shared even with other Government agencies. These minimization procedures have worked well, and under this bill, they are subject to FISC approval. Because it cannot be known in advance whether a foreign target is going to call, or be called by, a U.S. person, either the surveillance cannot be done or court orders would have to be obtained on all foreign targets ahead of time just in case they communicate with a U.S. person. This requirement would shut down our intelligence capabilities. Moreover, it is unsound policy to require a FISC order. If a terrorist target abroad calls a United States person, that may be the most important call to intercept to protect us from terrorist attacks. Would the Senator really mean that the call could not be intercepted until a massive court filing is prepared and reviewed by Government lawyers and operators, and submitted to the FISC who must first review the application and supporting documents and then issue an order? IX. Foreign Intelligence Surveillance Court Myths Facts 41) The FISA framework in place is enough to The FISC was set up to issue orders for keep us safe. (Dodd, p. 17) electronic surveillance conducted on individual targets inside the United States. It was not set 42) Regarding the suggestion to have the FISC up to make determinations on the good faith of review the good faith of the carriers before providers in cooperating with a Presidentially- immunity is granted: the FISC sits "24/7, authorized warrantless surveillance program. and this is all they do, they would act en It was not set up to second-guess the decisions banc." (Feinstein, p. 66) of trained analysts as to which terrorists to track by assessing compliance with 43) The FISC was set up for the purpose of minimization procedures. As reflected in the determining whether the carriers acted in FISC's opinion of December 11, 2007, the good faith and it has the expertise in this FISC judges are not experts in foreign area. (Cardin, p. 110) intelligence activities and they do not make judgments on the need for particular 44) The FISC doesn't issue written opinions. surveillances. Congress is in the best position (Cardin, p. 110) to review whether the carriers acted in good faith. After a thorough review of this issue, the 45) Allowing the FISC to assess compliance is SSCI voted overwhelmingly in favor of carrier necessary; otherwise, the Government's liability protection. dissemination and use of information on innocent, law-abiding Americans will be The FISC does not sit 24/7; rather, it is unchecked. (Feingold, p. 112) composed of U.S. District Court Judges from throughout the country who have full caseloads 46) Re: the number of orders granted by the in their own districts and who come to FISC in the past 25 years--out of 18,000 Washington, D.C., on a rotating basis to issue requests, only 5 have been rejected. (Dodd, FISA orders. It would, in fact, be difficult to p. 133) get them together to sit en banc. The FISC regularly issues classified written orders or 47) Congress needs to obtain FISA pleadings opinions, and it (or the FISA Court of Review) because it "may be critical to understanding has published three of those opinions in its the reasoning behind any particular history, including the FISC's opinion on interpretation as well as how the December 11, 2007. Government interprets and seeks to implement the law." (Feingold, p. 112) With the passage of the PAA, significant intelligence gaps have been closed. Prior to the PAA, the FISA framework was not sufficient and led to the creation of those gaps. It is misleading to imply that the TSP could have been "rubber-stamped" by the FISC. On the contrary, it was an adverse FISC ruling that degraded our intelligence capabilities and led to the passage of the PAA. The SSCI bill has a provision that broadens current congressional access to certain FISC orders, opinions, and decisions. There is no need to obtain related pleadings as the Court's decisions adequately reflect any legal reasoning. Requiring the pleadings, particularly going back 5 years, will place an unnecessary administrative burden on already strained resources. X. The Protect America Act Myths Facts 48) The Protect America Act was negotiated in The only secret negotiations during the PAA secret at the last minute. (Kennedy, p. 68) process were those between the Democratic leaders of the SSCI, the House Permanent 49) The PAA process was flawed and resulted Select Committee on Intelligence, the Senate in flawed legislation, with few people Judiciary Committee, the House Judiciary knowing what the language would actually Committee, and the House and Senate. No do. (Kennedy, p. 68) Republicans were allowed to participate in these negotiations, notwithstanding the 50) The PAA was rushed through the Senate in extensive work on FISA modernization that an atmosphere of fear and intimidation had been done already on a bipartisan basis by after the Administration "reneged on the SSCI. agreements reached with congressional leaders." (Leahy, p. 137) As a result, the counterproposal to the PAA was not even available for review until less than one hour before the vote; conversely, the substantive text of the PAA, as ultimately enacted, was available one week before the vote and was on the Senate Calendar two days prior. The PAA did what it was intended to do: close the intelligence gaps which threatened the security of our country. The DNI did not renege on any "agreements." He consistently stated that he had to see text before he could make any promises.
March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 December 2006 January 2007 February 2007 March 2007 April 2007 May 2007 June 2007 July 2007 August 2007 September 2007 November 2007 December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 March 2009 April 2009