Review of proposed FISA changes
After a markup session yesterday, the House Judiciary Committee passed the RESTORE Act with (The Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007) after incorporating three amendments submitted during the markup session. Overall, the changes made yesterday do not drastically alter the overall provisions of the bill as introduced on October 9 (summary, full text).
Following are summaries of the three amendments and their respective sponsor(s). I am almost certain the Jackson-Lee and Scott amendments were limited to wordsmithing. For example adding the modifier “significant” to the word “purpose.” I do not have any information on the Nadler amendment at this time beyond the summary provided below.
Jackson-Lee (TX): An amendment to clarify the bill’s language and prevent “reverse targeting” by requiring the Administration to obtain a regular FISA warrant whenever a “significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States” rather than waiting until said person formally becomes a target.
Nadler (NY): An amendment to improve court oversight over the government’s compliance with the FISA Court’s orders by requiring the court to assess compliance with its orders as opposed to merely authorizing it to do so and by removing limitations on its review.
Scott (VA): An amendment to the bill’s auditing and reporting requirements. The current standard is that acquisition must be with the “significant purpose” of gathering foreign intelligence. The amendment seeks to obtain information about what additional purposes for which the government may be collecting.
Given the significance of this bill, a comparative review of the current and proposed legislation may be helpful, but first let’s take a moment to summarize the evolution of the surveillance bills for clarity.
The first post-Watergate intelligence surveillance statue, FISA, was passed in 1978 and has been modified numerous times over the years. In general terms, the statute and applicable revisions have continued to be commonly referred to as FISA. In August of this year, immediately prior to the summer recess, Congress acquiesced to the Bush-Cheney administration’s fabricated terror threat and chest-pounding to pass the Protect America Act (PAA), a temporary law, which gave Bush carte-blanche to conduct warrantless eavesdropping on anybody, anywhere, void of any oversight, controls, or regulations. In some regards, one could easily argue he had been doing it for six years and had no intentions of changing, so what difference did it really make. A terrible argument, but unfortunately realistic.
The PAA superceded FISA’s specifications and regulations, therefore, what is actually being addressed today via the RESTORE Act are the provisions of the PAA. Consequently, the matrix below provides a comparison between the current law, PAA, and the proposed legislation, the RESTORE Act.
The RESTORE Act (HR 3773) vs. the PAA
| RESTORE Act of 2007 | Protect America Act |
| Prohibits warrantless surveillance of Americans. Requires a Court Order before targeting Americans’ phone calls or email. | Contains language that could authorize warrantless surveillance of Americans’ homes, offices, medical records, and phone records. |
| Requires an individual finding of probable cause before conducting surveillance on Americans who are abroad (soldiers, travelers, etc.). | Permits warrantless electronic surveillance of Americans abroad without probable cause. |
| Clarifies that no Court Order is required for surveillance of conversations where both ends are foreign. | Does not address this issue. |
| Grants the Attorney General and Director of National Intelligence authority to apply to the FISA Court for an order authorizing electronic surveillance of multiple foreign targets. The FISA Court must review the guidelines and procedures for this surveillance. | FISA Court’s review of procedures is only after-the-fact. FISA Court is relegated to a “rubber stamp” because it may only overturn the surveillance procedures if they are “clearly erroneous.” |
| FISA Court must approve minimization procedures. | No FISA Court review of minimization procedures allowed. |
| Mandates quarterly audits by the Justice Department Inspector General (DOJ IG) on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection. These audits would be provided to the FISA Court and to Congress (Intelligence and Judiciary Committees). Mandates an IG audit of non-compliance by intelligence agencies.
Mandates an IG audit of non-compliance by intelligence agencies. Requires the DOJ IG to conduct an audit of the Administration’s warrantless surveillance programs – to include providing authorizations and legal memoranda to Congress. |
Only authorizes an audit of non-compliance by intelligence agencies. |
| Authorizes the FISA Court, at its discretion, to review applications and other matters as a panel (en banc). | No provision for en banc review |
| Requires the government to submit applications before conducting surveillance (but provides for surveillance to begin immediately in an emergency). | Allows the government to conduct surveillance for 120 days before procedures must be filed with the FISA Court. |
| Narrows the scope of this new authority to allow surveillance on terrorism and other threats to national security. | Allows warrantless surveillance to collect any type of intelligence, to include information about trade negotiations. |
| Requires the government to establish a record-keeping system to track instances where information identifying U.S. persons is disseminated. | No such record keeping required. |
On a side note, last night, or probably better stated, early this morning, I fired off a letter about the proposed FISA changes to my respective Members of Congress. In addition to blasting the Bush-Cheney administration for its relentless lawbreaking, I believe I made it clear that I was not pleased with the attitude Congress is assuming with this bill in particular, as well as their overall complacent posture. That’s a bit ironic isn’t it? What kind of posture do invertebrates have? Well, at minimum we know they can’t qualify for biped status.
If you have not contacted your Senators or Representative about this issue (and hopefully others), and don’t have time to compose a personal letter, you are welcome to use mine as a template. Of course, the “template” is complete — all the hyperbole, over-the-top rhetoric, and requisite derriere-kissing a wingnut could possibly need.
The letter I have provided is addressed to a Representative, which can easily be modified slightly to accommodate Senators.
Download the letter here (pdf).
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