Congress to debate revamp of FISA surveillance powers
Presiding FISA Court Judge
Colleen Keller-Kotelly
Both the House and the Senate are proposing legislation to revise the Foreign Intelligence Surveillance Act which authorizes domestic spying and surveillance under certain legal conditions.
FISA, originally enacted in 1978, allows the government to spy on suspected domestic terrorists and foreign spies within the U.S., providing the relevant agencies obtain a warrant from a secretive special court created for this purpose.
However, changes in communications technology and revelations that the administration had engaged in massive warrantless domestic spying prompted Congress to take up reform of FISA earlier this year. Ironically, the result, the Protect America Act passed in August, gave the president even more latitude to conduct such searches.
At the time, Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office, warned that the Act would “vastly expand the administration's ability to conduct surveillance on Americans without a warrant."
The Protect America Act allows the attorney general and the director of national intelligence to "authorize the acquisition of foreign intelligence information" without the approval of the Foreign Intelligence Surveillance Court (FISC).
But the Protect America Act was meant as a temporary measure, designed to give both Congress and the president time to develop a long-term legislative solution. The Act expires in February 2008.
Both sides in the upcoming debate over what FISA should contain, and how much access government should have to personal communications, are already preparing for a bruising battle. According to public statements and the language contained in proposed legislation, the president and Congress are poles apart.
Within Congress itself, there are also sharp divides. Republicans have generally stressed the need to strengthen security, while Democrats have urged that strengthened security must not eliminate safeguards of constitutional rights of citizens.
The conflict will pit former House leader Tom Delayís protege, House Republican Whip Roy Blunt (R-MO) against Senate Intelligence Committee Chairman Jay Rockefeller (D-WV). Other leaders in the debate are sure to include Senators Arlen Specter (R-PA), Joe Lieberman (ID-CT) and Joe Biden (D-DE), and Representatives Silvestre Reyes (D-TX), Bennie Thompson (D-MS), Ed Markey (D-MA) and Peter King (R-NY) representing the Intelligence and Homeland Security Committees of both chambers.
The executive branch has already weighed in. Shortly after passage of the Protect America Act, President Bush made his position clear. “Unless the FISA reforms in the Act are made permanent, our national security professionals will lose critical tools they need to protect our country,” he warned.
The Democrat-controlled Congress, on the other hand, has been crafting legislation that would only allow surveillance under strict judicial review, balancing the need to strengthen national security with the need to protect Americansí civil liberties and privacy rights.
To underscore the need to keep that balance, an interim report from the Senate Intelligence Committee suggested October 18 that the proposed legislation should include a six-year “sunset” provision “to allow Congress to evaluate how the new authorities are carried out and to ensure that abuses do not occur before authorities are extended further.”
The legislation being developed in committee contains provisions to sharply curtail the use of private agents or carriers, such as phone companies and Internet service providers, to carry out government surveillance. The Senate Intelligence Committee is calling for legislation that offers “narrowly circumscribed immunity” to companies that participated in earlier, warrantless surveillance.
Future security agency requests will require certification from the attorney general that a private companyís participation was “pursuant to a written request or directive,” and was “determined to be lawful.”
The proposed legislation is also expected to strengthen the role of the FISA court, which must rule on any request for a warrant for domestic surveillance. Although that secret court has been criticized for its initial rubber stamping of security agency requests, it has recently been taking a much more careful look at the merits of such requests.
Although 18,761 warrants were granted through 2004, the number of modification requests (effectively challenging the validity of the warrants sought) has soared in recent years. A review of Justice Department reports to Congress shows that FISC modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.
Legal and security experts point out that the court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, intercepting telephone calls, e-mails, faxes and Internet communications.
Proposed legislation would give Congress a strong oversight role in this process.
However, it is one thing to propose, and another to pass legislation.
Peter Shane a law professor at Ohio State University, and an internationally recognized expert on legal issues concerning cyberspace and democracy, has warned that Congressional gridlock over reform of FISA could harm the legislatureís constitutional role to provide legislative oversight in such matters.
“There is an apparent breakdown in external checks and balances” between the legislative and executive branches, he observed.
“We need systemic accountability,” Shane told GSN. “Congress is trying to get the executive branch to do its job in a particular way, to show justification for [seeking] search warrants.”
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