December 13, 2007
Re. Opposition to the FISA Amendments Act reported by the Senate
Select Committee on Intelligence.
Dear Senator,
We, the undersigned organizations who care deeply about both civil
liberties and effective intelligence-gathering, strongly urge you to oppose the
FISA Amendments Act of 2007 as reported out by the Senate Select Committee on
Intelligence (S. 2248). The
Intelligence Committee bill unreasonably and unnecessarily authorizes broad
surveillance of Americans’ international communications without meaningful Fourth
Amendment protections: no individualized
warrant issued by a court, no determination of probable cause of wrongdoing,
and no specification of the location or means of the surveillance.
The Judiciary Committee approach, in contrast, provides some
crucial protections for Americans’ international communications that are sorely
lacking in the Intelligence Committee’s bill.
We urge you to support the Judiciary Committee changes as well as other
improvements that are also needed to protect Americans’ privacy and
constitutional rights.
Below are some of the most important reasons to oppose the Intelligence
Committee’s bill and support the Judiciary Committee’s mitigation of some of its
failings, as well as additional protections.
* “Bulk Collection.”
The Intelligence Committee bill fails to
include provisions that would clearly prevent the bulk collection of international communications, which would
inevitably sweep in millions of communications by Americans so long as one
party to a phone call or e-mail is believed to be located abroad and the
purpose is to gather foreign intelligence. The Judiciary Committee
approach would affirmatively prevent such bulk collection. Rather
than permitting broad streams of Americans' communications to be seized, the Judiciary Committee approach
requires that the surveillance target a particular individual or phone number abroad, although that person abroad could
be virtually anyone. The administration has assured the Congress that it does not
engage in such bulk collection of international communications and that doing
so is not necessary for national security.
* No Individualized
Warrant Even When Government is Interested in American’s Communications. The Intelligence Committee bill allows the
government to intentionally and knowingly acquire millions of Americans’
international communications with no individualized warrant or determination of
probable cause. Such protections are
required only if and when the government decides to “target” a particular
American, meaning use their phone number or e-mail address to select their
communications for acquisition.
While the Judiciary Committee approach does not restore the
protections that existed in FISA before the enactment of the Protect America
Act, it improves the bill by requiring that individualized review by the FISA
court is sought once acquiring the communications of a person in the United
States becomes a “significant purpose” of the surveillance.
*
Government Accountability. The
Intelligence Committee bill does not include a key provision necessary for
Congress to fulfill its responsibility to investigate and oversee the
activities of the intelligence agencies that threaten the civil liberties of
Americans. The Intelligence Committee
bill omits a one-time retroactive audit of all illegal NSA surveillance
conducted prior to January 2007. That
provision is contained in the Judiciary bill.
It is essential to ensure that key documents are preserved, that there
is accountability for illegal activities, and that Congress only legislate on
key privacy protections in the FISA with full knowledge and public debate on
what changes are warranted.
* Sunset. The Intelligence Committee bill would
authorize the government to conduct this massive surveillance for six years. The Judiciary Committee approach would more
prudently shorten the period to four years, which is still too long in our view.
* Exclusivity. The
Judiciary amendment reiterates that FISA is the exclusive means for foreign
intelligence wiretapping of Americans on American soil, and will prevent any
future argument that a subsequent statute like the 2001 Authorization to Use
Military Force implicitly amended FISA intended to allow warrantless wiretapping
of Americans. It does this by tightening
FISA’s exclusivity language both directly and by maintaining FISA’s long-standing
definition of “electronic surveillance.”
The Intelligence Committee bill eviscerates that definition.
* Retroactive Immunity for
Wrongdoing. The Judiciary version of
S. 2248 does not grant blanket immunity to the telecommunication companies that
facilitated the President's warrantless wiretapping program in violation of the
clear terms of the statute. It leaves
that major policy decision for later, and allows Congress to thoroughly vet all
the options before it acts, if it chooses to act at all. The Intelligence Committee version would give
blanket immunity from the statutory damages FISA has long permitted for
companies that aid in warrantless electronic surveillance of Americans.
The Protect America Act granted unnecessary and unconstitutional
powers to the Executive Branch. The
Intelligence Committee bill does little to rectify this. We ask that you vote now to rein in that
unwise expansion of power by opposing the Intelligence Committee bill and
supporting the improvements made by the Senate Judiciary as well as additional
amendments needed to protect the rights of Americans.
Thank you for considering our
views.
American-Arab
Anti-Discrimination Committee
American
Civil Liberties Union
American
Library Association
Association
of Research Libraries
Bill
of Rights Defense Committee
Bill
of Rights Defense Foundation
Center
for American Progress Action Fund
Center
for Democracy and Technology
Center
for National Security Studies
Council
on American-Islamic Relations
Defending
Dissent Foundation
Electronic
Frontier Foundation
Federation
of American Scientists
National
Association of Criminal Defense Lawyers
OMB Watch
Open
Society Policy Center
PrivacyActivism