December 6, 2007

Memorandum to Interested Persons

Re: The FISA Amendments Act, S. 2248, and Americans’ Privacy

Summary:

· We urge you to oppose the FISA Amendments Act of 2007, S. 2248 (FAA-SSCI) as reported by the Senate Select Committee on Intelligence. The FAA-SSCI provides much broader authority for warrantless surveillance of Americans’ international communications than is either permitted by the Constitution or warranted by the issue at hand.

· We urge Members to support the substitute to the FAA reported out of the Senate Judiciary Committee (FAA-SJC) as a significant improvement over the FAA- SSCI. While neither the Judiciary mark nor the RESTORE Act in the House undo all the harm created by the Protect America Act passed in August, both are examples of how it is possible to address the national security concerns and at the same time make significant progress towards restoring constitutional protections and congressional and public oversight.

· We urge you to support additional amendments to FAA-SJC necessary to protect Americans’ privacy and meet constitutional requirements. We recognize the importance of electronic surveillance in preventing future terrorist attacks and it is clear that additional improvements can be made which assure the effectiveness of such surveillance without sacrificing constitutional protections.

Attached to this memorandum is a letter outlining our concerns about the FAA as reported by the Intelligence Committee. Below are brief comments outlining how the improvements made by the Senate Judiciary deal with many of those concerns.

· The FAA-SSCI authorizes much broader warrantless surveillance authority than is justified by national security concerns or was even authorized under the Terrorist Surveillance Program.

· The FAA-SSCI authorizes warrantless surveillance of Americans’ international communications without any Fourth Amendment protections. The Protect America Act eliminated all the protections contained in FISA when intentionally acquiring Americans’ international communications from facilities in the U.S.:

o Prior judicial authorization of the surveillance;

o Determination that individual probable cause exists;

o Specification of the target or persons whose communications will be seized and the location and means of interception.

· The FAA-SJC did not restore all these protections. It did, however, adopt two important amendments that would limit when the government can intentionally acquire Americans’ international communications under the broad new authority.

o First, FAA-SJC requires that the Justice Department adopt rules ensuring that when a significant purpose of the surveillance is to acquire the communications of a particular person in the United States, the government must obtain a warrant under the FISA.

o Second, FAA-SJC codifies the administration’s assurances that it will not engage in “bulk collection.” Both of these improvements are essential. The protection against bulk collection, by limiting acquisition to communications to which at least one party is a specific individual target is also a step towards meeting the constitutional specificity requirement intended to prevent general searches of Americans’ private communications.

· Neither bill, however, limits such warrantless surveillance to the collection of information needed to prevent terrorism or address other national security threats, as does the RESTORE act in the House.

· Sunset. The Judiciary bill sunsets the authorization for such warrantless surveillance in four years, instead of six. That is still too long in our view. We urge the Senate to adopt a shorter sunset date.

· The FAA-SSCI bill does not contain adequate after-the-fact oversight or safeguards. While the bill provides for judicial approval of minimization procedures, those procedures were intended to address the truly incidental collection of information when there had been a judicial determination of probable cause and authorization for the collection. They are no substitute for judicial authorization and a meaningful standard for collection. The FAA-SJC strengthens the court’s after the fact review.

· The FAA-SJC includes a key step towards fulfilling Congress’ responsibility to investigate and oversee the activities of the intelligence agencies that threaten the civil liberties of Americans. The Judiciary bill requires an essential audit of the illegal NSA surveillance conducted prior to January, 2007. That provision is not contained in the FAA-SSCI.

· The FAA-SSCI allows the government direct access to the telecommunications network in the United States in secret with no oversight. The FAA-SJC ameliorates this somewhat with its prohibition on bulk collection.

· The FAA- SJC bill tightens FISA’s exclusivity language both directly and by maintaining FISA’s longstanding definition of electronic surveillance. The FAA- SSCI puts this surveillance outside the statute by changing the definition. At the same time, it is important to note that the exclusivity provision is only likely to be effective if the FISA statute itself doesn't contain an enormous loophole allowing the Executive Branch to directly order the telecoms to allow direct access in secret to target anyone overseas.