No Easy Answers
Sunday, January 27, 2008
Senator Bond: The Facts Strike Back on FISA
Source:
http://www.fas.org/irp/congress/2008_cr/bond-fisamyths.pdf
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. ยง 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.
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