Executive Summary of Grave Concerns about the FISA bill, S. 1927

*This is CNSS’ analysis of the bill before it was signed into law on August 5, 2008

The Center for National Security Studies strongly opposes the administration’s FISA bill, S. 1927, because it would permit the National Security Agency to acquire and analyze all international communications of Americans, without any meaningful judicial oversight. The administration legislation would allow the NSA warrantless access to virtually all international communications of Americans with anyone outside the US, so long as the government declared that the surveillance was directed at people, which includes foreigners and citizens, reasonably believed to be located outside the US, a definition that covers billions of people.

The administration rejected all reasonable efforts to require that such surveillance be focused on foreigners, be directed at terrorist targets or be limited to protecting against international terrorism. They also rejected efforts to include meaningful court review of the rights of individual Americans’ swept in or even an independent audit of the affect on the privacy of Americans.

This legislation would sunset or expire in six months. However, the sunset has an exception that would allow any directives by Attorney General Gonzales and Director of National Intelligence McConnell that commandeer access to US telephone and internet companies to remain in effect until their expiration (which is likely to be until the end of the administration since the directives can be issued for up to one year, so could be issued to last for the next six months and then reissued on the eve of the sunset, in January 2008, to remain in effect until this administration is finally over in January 2009).

Detailed Analysis

The administration approach would allow the NSA warrantless access to virtually all international communications of Americans with anyone outside the US, so long as the government declared that the surveillance was directed at anyone reasonably believed to be overseas.

• This would be the effect of Sec. 105A which puts outside the definition of electronic surveillance “surveillance directed at a person reasonably believed to be located outside of the United States.”

• It would authorize surveillance much broader than that described by the President in the “Terrorist Surveillance Program” – communications between an overseas target and someone in the U.S. where one person is suspected Al Qaeda. Instead, the NSA could collectthe communications of billions of people overseas and seize millions of international communications of Americans every day for the foreseeable future.
• This approach would also permit the warrantless surveillance of countless Americans traveling, working or fighting in the armed services abroad under the carve-out for directing surveillance against individuals abroad. The bill provides no judicial oversight of such interceptions.

There is no requirement that the surveillance be directed at suspected terrorists.

• For all these millions of American communications, there would be no requirement that the American even be suspected of any contact with or connection to al Qaeda or any other terrorists.

• Indeed, there is not even any requirement that even the overseas targets have any connection with al Qaeda or with any suspected terrorist or group. The administration approach is not about targeting, particular foreign terrorists, and the purpose of the surveillance that would be authorized under the bill is to gather "foreign intelligence" generally, not just intelligence about terrorism.

The administration approach would allow massive surveillance of Americans with no meaningful judicial oversight or individualized probable cause in violation of the Fourth Amendment.

• No judicial order would be required for before the acquisition of calls to or from Americans, which is required under current law to protect the privacy of Americans’ international communications from be acquired from US phone and internet companies here.

• This would be accomplished by carving out surveillance scooping up communications of anyone overseas (and any Americans they talk to) from the protections in FISA against acquiring such communications here in the US. It would allow the NSA to bypass the warrant requirements of FISA intended to guarantee the Fourth Amendment rights of American residents.

• The administration refused all reasonable proposals to ensure that the courts are involved to protect the rights of Americans to the privacy of their international calls. By refusing any proposal that required even after the fact court review to protect Fourth Amendment rights, the administration undermined its manufactured claims that legislation was truly needed for security. If changes to the law were truly essential for our security, it would be unreasonable to refuse such changes because they include meaningful and independent checks by the courts to protect Americans’ rights.

The administration’s legislation does not provide the adequate and independent review required by the Fourth Amendment’s checks.

• The administration's proposal to require approval by the Attorney General and the Director of National Intelligence, is not an adequate substitute for independent judicial review of surveillance that would invade the privacy of millions of Americans. It is only too clear that the Executive Branch cannot police itself, as the Founders recognized in providing for separated and independent powers.

• The administration may claim there is judicial review, but this section is merely window dressing. Four months after passage, the FISA court would be asked to review the government’s procedures for determining that its surveillance is directed at persons overseas. Even if the court thought the government’s procedures were not sufficient, it could not stop the program unless it found the government’s approach was “clearly erroneous,” an exceedingly difficult standard for reversal. And even then the program would continue unless the Supreme Court decided against the government under that very high standard.

This is not a "new" proposal, predicated on a disagreement with the courts.

• While administration allies have just leaked information about a secret court ruling that they claim necessitates this change, every draft FISA proposal by the administration and its allies since early 2006, well before any court ruling, would have given the NSA a blank check to access Americans’ international communications.

• If the FISA court has expressed concerns about NSA surveillance being legal or constitutional, those concerns ought to be publicly disclosed, rather than brushed aside by an effort to simply cut out the court’s role.

The administration’s approach would allow the executive to conduct such surveillance with virtually no oversight whatsoever.

· The bill contains no meaningful reporting requirements to the FISA court concerning even the number of Americans, here or abroad, who would be monitored under these new surveillance authorities. The administration does not want any other branch of government or the American people to know the true scope and effect of their monitoring of innocent Americans.

• The administration's proposed reporting to Congress is a sham. The administration would only report to the Congress if an agency or agent exceeded the exceptionally broad power the bill would grant to acquire all international calls and e-mails of Americans. It would require no reporting on how many calls and individuals were surveilled. The administration refused all efforts to get an independent audit on the effect on Americans.

The administration has not demonstrated that the bill would benefit intelligence or the men and women in the intelligence community.

• This so-called modernization proposal would make the needles in the haystack even harder to find by opening the floodgates on monitoring virtually all calls or e-mails to or from Americans involving any foreign terminal, without warrants.

• The men and women in our intelligence community deserve better than this. They deserve clear rules subject to genuine checks that honor the American people they are working tirelessly to protect.

The Six-Month Sunset Has an Exception to Allow Such Warrantless Access until the End of the Bush Administration

• This legislation would sunset or expire in six months. However, the sunset has an exception that would allow any directives by Attorney General Gonzales and Director of National Intelligence McConnell that commandeer access to US telephone and internet companies to remain in effect until their expiration.
• The directives are likely to last until the end of the administration even though the legislation would sunset if Congress does not renew it, because the directives can be issued for up to one year, and so could be issued to last for the next six months and then reissued on the eve of the sunset, in January 2008, to remain in effect until this administration is finally over in January 2009.
• This cleverly written sunset will give the Bush Administration legal license to engage in wide-ranging surveillance of all international communications of Americans, not just for six months but for the rest of this president and vice president’s term in office.

Status of Requested Documents:

Senator Leahy has extended the Bush Administration’s time to respond to subpoenas issued by the Senate Judiciary Committee. In June, CNSS applauded Senator Leahy and a bipartisan majority of the Senate Judiciary Committee for issuing subpoenas to the White House, the Department of Justice, the National Security Council and Vice President Cheney’s Office for documents about the President’s warrantless wiretapping program.  In the wake of the disturbing events detailed by former Deputy Attorney General James Comey, the Committee seeks contemporaneous documents regarding legal objections to such unchecked spying on American residents.  Senator Leahy stated in response to the Bush Administration’s request for an extension:

“I hope the White House uses this additional time constructively to finish gathering the relevant information and then works with us in good faith on ways to provide it so that we will have the information we need to conduct effective oversight at long last.” July 17, 2007

Senator Leahy’s Press Release in its Entirety June 27, 2007.

Subpoena packet for documents from the White House

Subpoena packet for documents from the Office of the Vice President

Subpoena packet for documents from the Department of Justice

Subpoena packet for documents from the National Security Council

Senators Leahy and Specter insist on the disclosure of documents related to NSA Warrantless Wiretapping, May 21, 2007.

CNSS NSA page

Statement of the Center for National Security Studies, Constitutional Failing of the Foreign Intelligence Surveillance Modernization Act, Before the Senate Select Committee on Intelligence.

Please read CNSS’ rebuttal of the Justice Department’s argument for dramatic revisions to the rules for monitoring Americans’ communications in the administration’s new FISA “modernization” bill. 

Please read CNSS Deputy Director Lisa Graves’ testimony, Unchecked National Security Letter Powers and Our Civil Liberties, before the House Permanent Select Committee on Intelligence of the House of Representatives, March 28, 2007:

Congress is responsible for helping to ensure that any powers used by the Executive Branch are focused, effective and protect our civil liberties. The NSL powers fail that test. Their focus is too diffuse. The anecdotal evidence of their effectiveness is disproportionately small compared with the extent of their use and the invasion of privacy they represent. Civil liberties have not been adequately protected. The implementation of the requirements for using these intrusive powers was sloppy. The weak procedures intended to provide some protection were circumvented hundreds of times and this happened at FBI headquarters.…This is a substantial failure. An “F.” (excerpt from Lisa Graves’ Testimony)