HR3773NOV16

Legislation News & Report (TM)

TheWeekInCongress.com (TM)

Managing America: War on Terror

Home

Contact: House / Senate

Newest Public Laws

Monthly Budget Review

DISSENTING VIEWS

In August, Congress passed the `Protect America Act of 2007,' which filled a gap in existing law. The bill: (1) affirmed well-established law that neither the Constitution nor federal law requires a court order to gather foreign communications from foreign terrorists; (2) adopted flexible procedures to collect foreign intelligence from foreign terrorists overseas; and (3) provided for court review of collection procedures under this new authority. The Director of National Intelligence Admiral Mike McConnell made it clear that these reforms were essential for the Intelligence Community to protect America from terrorist attack. 1

[Footnote] The majority in large part acceded to Admiral McConnell's request but tacked on a 180-day sunset provision.

[Footnote 1: Admiral McConnell's intelligence and national security career spans over 30 years. He has served under both Democratic and Republican Presidents, including as the Director of the National Security Agency in the Clinton Administration. Despite his impressive, non-partisan service in the Intelligence Community, Democrats have impugned his motives and his integrity purely for partisan gain. Such criticisms are unfair and distract from what should be a non-partisan issue--protecting our country from terrorist attacks.]

Admiral McConnell has explained to Congress for more than a year that due to recent FISA court decisions, the government must now devote substantial resources to obtaining court approvals--based on a showing of probable cause--to conduct surveillance against terrorists located overseas in some circumstances. This is contrary to what Congress intended when it enacted FISA and has come about simply because of a change in technology. The government does not know in advance whom these terrorists will talk to and needs to have the flexibility to monitor calls that may occur between a foreign terrorist and a terrorist inside the United States. Such monitoring of these communications can be conducted with well-established minimization rules that have been applied to restrict any unwarranted intrusion on the civil liberties of any United States citizens. Requiring specific applications and authority for surveillance of such communications would impose burdens and delays with possible catastrophic consequences.

Some groups and newspaper editors have, in the name of protecting civil liberties, spent the last month spreading false allegations and misconceptions about foreign surveillance to foster opposition to the Protect America Act. Such claims are irresponsible.

We are a nation at war with foreign terrorists who continue to plan deadly attacks against America. The safety of Americans depends on action by Congress. Foreign terrorists are committed to the destruction of our country. To defeat them, our Intelligence Community must have the necessary tools to detect and disrupt such attacks.

We have a responsibility in Congress to prevent attacks against our country and protect our communities and our families. Civil liberties are the foundation of our freedom, but such freedom will never exist if we have no security. We all cherish our individual liberties. But our liberties cannot flourish without security. The pursuit of life, liberty and happiness can only occur with peace of mind and a safe and secure country.

This fall we had two full Judiciary Committee hearings on the Protect America Act. Admiral McConnell testified that prior to the Act, the Intelligence Community was not collecting approximately two-thirds of the foreign intelligence information that it used to collect before recent legal interpretations required the government to obtain FISA court orders for overseas surveillance. In addition, Admiral McConnell urged Congress to enact the Administration's FISA modernization legislation submitted in April.

The RESTORE Act of 2007 ignores the Administration's April submission and Admiral McConnell's testimony at the oversight hearing. It would significantly limit the Intelligence Community from conducting foreign intelligence collection, improperly inject the FISA court into review of operational details and expand oversight responsibilities to unqualified entities.

It is striking how the majority has acted when it comes to protecting our country from terrorists, spies and other enemies. These are not issues that should be sacrificed to talking points, politics and the satisfaction of liberal lobbying interests. We should be passing effective bipartisan legislation, supported by Admiral McConnell, to protect our national security.

Telecommunications technology has evolved rapidly in the last 30 years. Terrorist tactics are constantly changing in response to our efforts to disrupt their plots. Essential tools that we use must be modernized to keep up with the changing environment.

The American people understand what is at stake--nearly 60 percent of Americans polled on the subject of FISA reform supported the Protect America Act. Less than 35 percent opposed it. The simple fact is that Americans support surveillance of foreign terrorists when they contact persons in the United States.

The RESTORE Act in fact restores nothing. The safety of Americans depends on responsible action by Congress. The majority has ignored the need for modernizing the Foreign Intelligence Surveillance Act. Rather, it has adopted rhetoric that boils down to political cover at the expense of national security.

The RESTORE Act is flawed in so many respects that we will address only the most significant problems with the bill.

First, the RESTORE Act requires the Intelligence Community to obtain FISA court orders for foreign communications of persons reasonably believed to be outside the United States. Since it was enacted in 1978, FISA never required the government to acquire court orders for such communications, and the legislative history and subsequent Court decisions support that view. It is irresponsible to extend constitutional protections under the 4th Amendment to terrorists, spies and other enemies overseas--an unprecedented act that will threaten our country's security.

At the oversight hearing, Admiral McConnell stated that such a solution is unworkable and impractical. He explained that this was not because of a `resource' limitation but was because of the need to collect and analyze foreign intelligence information on a timely basis so that threats can be identified and acted upon.

FISA does not require a court order to gather foreign communications between foreign terrorists outside the United States. The majority repeats this undisputed fact to deflect discussion of the real issue--should FISA require a court order when a foreign terrorist communicates with an unknown person at an unknown location? The RESTORE Act says yes. The Intelligence Community and 30 years of experience under FISA say no. For the last 30 years FISA never required such an order, and the majority's push now to require a court order threatens our nation's safety.

The majority shows no concern for the impact such a requirement will have on the Intelligence Community. Requiring a court order for every phone call from a foreign target to a person inside the U.S. is contrary to FISA as it has operated for 30 years and contrary to common sense--how can the Intelligence Community anticipate a communication from a foreign terrorist to a terrorist inside our country?

In much the same way as a criminal wiretap, FISA provides--and has provided for 30 years--specific minimization procedures to protect the privacy of persons inside the United States with whom a foreign target may communicate. It is unclear why now, after all this time, the majority now seeks to dismantle rather than modernize FISA.

Requiring separate FISA authority for these calls would be a deadly mistake. Calls between a foreign terrorist and a person located inside the United States should be minimized in accordance with well established procedures. To do otherwise is to jeopardize the safety of our nation.

Second, the RESTORE Act omits any retrospective liability protection for telephone companies and other carriers that assisted the government after September 11, 2001. These companies deserve our thanks, not a flurry of lawsuits seeking access to documents the disclosure of which would harm our country. The majority promised Admiral McConnell that this issue would be addressed in this legislation, and the majority has reneged on its promise.

Third, the RESTORE Act injects the FISA Court into reviewing and approving the Intelligence Community's procedures for (1) minimization; and (2) `guidelines' for determining that there is a reasonable basis to believe that the telephone is located outside the United States. This is unprecedented and will only burden the Intelligence Community with court review of operational details that will only delay FISA court approval of surveillance orders, all to the detriment of our security.

Fourth, the RESTORE Act authorizes the FISA court to conduct wholesale reviews of how the Intelligence Community `acquires, retains and disseminates' foreign intelligence information. The FISA court plays a critical role in providing judicial review of the government's FISA applications in specific cases. But this proposed expansion gives the Court a `super-supervision' role that is inappropriate and unnecessary.

Fifth, the RESTORE Act inexplicably creates a new sunset--December 31, 2009. This is a mistake. If Congress needs to change the law, then it should do so, notwithstanding any sunset. Terrorists do not lay down their arms or change their objectives when a sunset fast approaches, and neither should the United States abandon tools on a date certain in the future.

Sixth, the RESTORE Act requires the Justice Department's Inspector General to conduct (1) quarterly audits of the Intelligence Community's compliance with the requirements of the new Act; and (2) an audit of all surveillance activities conducted without a warrant after September 11, 2001. We respect the DOJ IG's work on a number of issues. However, the DOJ IG does not have the expertise or knowledge of the FISA process, the Intelligence Community's activities, and inner-workings of various agencies to be able to conduct meaningful reviews. Moreover, the intelligence agencies (e.g. CIA, NSA) already have Inspector Generals who conduct regular audits and will continue to do so even if this provision was enacted.

Seventh, the RESTORE Act requires the DNI and the Justice Department to submit reports every 120 days on foreign surveillance operations, including any instance of non-compliance with any court requirement. The DNI and Justice Department are already required to provide detailed information on such surveillance to the Senate and House Intelligence Committees, and there is no need to increase that requirement.

Lastly, the RESTORE Act requires the Justice Department and the Intelligence Community to create a new database that records every instance in which the identity of a United States person whose communications was collected is disclosed to other agencies and for what purpose. This proposal is misguided--while attempting to protect American's civil liberties, it may have the opposite effect by establishing a single database that lists all Americans who have been identified in foreign intelligence information and whose identity has been disclosed to other agencies.

Such disclosures may not reflect that the person has been identified as a suspected terrorist or a spy; it may be that the person's identity is a lead needed to collect important information concerning another person's activities. The majority does not explain why such a database is needed, why such records are important, and how such records will be protected from unauthorized or inadvertent disclosures.

We can only hope that the majority will take the RESTORE Act and go back to the drawing board. As currently drafted, the majority's proposal is irresponsible, ignores well-established practices governing the collection of foreign intelligence information, and in the end will embolden and enhance our enemies' ability to carry out deadly plots without fear of being detected.

We should maintain our commitment to winning the war against terrorism. George Washington once said, `There is nothing so likely to produce peace as to be well prepared to meet the enemy.' Heeding his words, we must maintain our commitment to winning the war against terrorism.

FISA MODERNIZATION

Last April, Admiral McConnell submitted to Congress a comprehensive proposal to modernize FISA. That proposal should have been enacted.

When Congress drafted FISA in 1978, it framed critical definitions (most importantly, the definition of `electronic surveillance') in terms of the specific communications technology in use at the time. As a result, the application of FISA depends heavily on the technology used to communicate. Sweeping changes in telecommunications technology have occurred since 1978. These changes were not and could not have been anticipated by Congress.

The Administration's proposed bill would amend the definition of `electronic surveillance' in a manner that restores FISA's original focus on the domestic communications of persons within the United States. Importantly, the amended definition would not depend on the technologies now in use and would continue to maintain the right focus as technology changes.

The bill also streamlines the FISA application process. It would eliminate the unnecessary burden that the current statute places on the government. Applications should contain only the information the FISA Court needs to make its determinations.

The bill would provide liability protection to communications providers that are alleged to have assisted the government with authorized intelligence activities since 9/11. Those companies deserve our appreciation--not a deluge of lawsuits.

In addition, the bill would amend the definition of `agent of a foreign power' to allow surveillance of non-US persons who possess significant foreign intelligence information. The bill also would modify the definition to include persons who engage in the proliferation of weapons of mass destruction.

Finally, the bill would provide for the transfer of cases involving the legality of classified communications intelligence activities from regular courts to the FISA Court. This will help protect classified information and allow cases to proceed before the court most familiar with communications intelligence activities and most practiced in safeguarding the type of national security information involved.

AMENDMENTS

Republican Members offered two amendments at markup. The first, offered by Mr. Forbes of Virginia, was an amendment in the nature of a substitute that incorporated the Administration's FISA modernization proposal. The second, offered by Mr. Gohmert of Texas, struck sections 3 and 4 of the underlying bill. Both amendments were defeated by recorded vote. Below is a summary of the substitute amendment.

Section 1. Short Title. This section cites the title of the Act as the `Foreign Intelligence Surveillance Modernization Act of 2007.'

Section 2. Definitions. This section amends the definition of `agent of a foreign power' to include non-United States persons who possess or receive significant foreign intelligence information while in the United States. This amendment would ensure that the United States government can collect necessary information possessed by a non-United States person visiting the United States.

This section also redefines the term `electronic surveillance' in a technology-neutral manner to refocus FISA on the communications of individuals in the United States. When FISA was enacted in 1978, Congress used language that was technology-dependent and related specifically to the telecommunications systems that existed at that time. As a result of revolutions in communications technology since 1978, and not any considered judgment of Congress, the current definition of `electronic surveillance' sweeps in surveillance activities that Congress actually intended to exclude from FISA's scope.

Section 2 provides a new, technology-neutral definition of `electronic surveillance' focused on the core question of who is the subject of the surveillance, rather than on how or where the communication is intercepted. Under the amended definition, `electronic surveillance' would encompass:

(1) the installation or use of an electronic, mechanical, or other surveillance device for acquiring information by intentionally directing surveillance at a particular, known person who is reasonably believed to be located within the United States under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or

(2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, if both the sender and all intended recipients are reasonably believed to be located within the United States.

Finally, section 2 also amends the definition of the terms `minimization procedures' and `content' to conform to other changes in this proposal or provisions in Title 18.

Section 3. Attorney General Authorization for Electronic Surveillance. This section alters the circumstances in which the Attorney General can exercise his authority--present in FISA since its passage--to authorize electronic surveillance without a court order. Currently, subsection 102(a) of FISA allows the Attorney General to authorize electronic surveillance without a court order where the surveillance is `solely directed' at the acquisition of the contents of communications `transmitted by means of communications used exclusively' between or among certain types of traditional foreign powers.

As a consequence, the government must generally seek FISA Court approval for the same sort of surveillance today. It is important to note that the proposed amendment to this provision of FISA would not alter the types of `foreign powers' to which this authority applies. It still would apply only to foreign governments, factions of foreign nations (not substantially composed of United States persons), and entities openly acknowledged by a foreign government to be directed and controlled by a foreign government or governments.

This section also creates new procedures (those proposed in new sections 102A and 102B) pursuant to which the Attorney General could authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States, under circumstances in which the acquisition does not constitute `electronic surveillance' under FISA.

This critical change works hand in glove with the new definition of `electronic surveillance' in section 2. FISA currently provides a mechanism for the government to obtain a court order compelling communications companies to assist in conducting electronic surveillance. Because the proposed legislation would reduce the scope of the definition of `electronic surveillance,' certain activities that previously were `electronic surveillance' under FISA would fall out of the statute's scope. This new provision would provide a mechanism for the government to obtain the aid of a court to ensure private sector cooperation with these lawful intelligence activities no longer covered by the definition of `electronic surveillance.' The new section would also provide a means for third parties receiving such a directive to challenge the legality of that directive in court.

Section 4. Jurisdiction of FISA Court. This section makes two relatively minor amendments to FISA. First, it amends section 103(a) of FISA to provide that judges on the FISA Court shall be drawn from `at least seven' of the United States judicial circuits. The current requirement--that judges be drawn from seven different judicial circuits--unnecessarily complicates the designation of judges for that important court.

This section also moves to section 103 of FISA, with minor amendments, a provision that currently appears in section 102. New section 103(g) would provide that applications for a court order under section 104 of FISA are authorized if the Attorney General approves the applications to the FISA Court, and a judge to whom the application is made may grant an order approving electronic surveillance in accordance with the statute--a provision that is most suitably placed in section 103 of FISA, which pertains to the FISA Court's jurisdiction.

The new provision would eliminate the restriction on the FISA Court's jurisdiction in 50 U.S.C. Sec. 1802(b), which provides that the court cannot grant an order approving electronic surveillance directed at the types of foreign powers described in section 102(a) unless the surveillance may involve the acquisition of communications of a United States person. Although the government still would not be required to obtain FISA Court orders for surveillance involving those types of foreign powers, the removal of this restriction would permit the government to seek FISA Court orders in those circumstances when an order is desirable.

Section 5. Application for Court Orders. The current procedure for applying to the FISA Court for a surveillance order under section 104 of FISA should be streamlined. While FISA should require the government to provide information necessary to establish probable cause and other essential FISA requirements, FISA requires the government to provide information that is not necessary to these objectives. Section 5 attempts to increase the efficiency of the FISA application process in several ways.

First, the government currently is required to provide significant amounts of information that serves little or no purpose in safeguarding civil liberties. By amending FISA to require only summary descriptions or statements of certain information, the burden imposed on applicants for a FISA Court order authorizing surveillance will be substantially reduced. For example, section 5 amends the current FISA provision requiring that the application contain a `detailed description of the nature of the information sought,' and would allow the government to submit a summary description of such information.

Section 5 similarly would amend the current requirement that the application contain a `statement of facts concerning all previous applications' involving the target, and instead would permit the government to provide a summary of those facts. While these amendments would help streamline FISA by reducing the burden involved in providing the FISA Court with information that is not necessary to protect the privacy of U.S. persons in the United States, the FISA Court would still receive the information it needs in considering whether to authorize the surveillance.

Section 5 also increases the number of individuals who can make FISA certifications. Currently, FISA requires that such certifications be made only by senior Executive Branch national security officials who have been confirmed by the Senate. The new provision would allow certifications to be made by individuals specifically designated by the President and would remove the restriction that such individuals be Senate-confirmed. As this committee is aware, many intelligence agencies have an exceedingly small number of Senate confirmed officials (sometimes only one, or even none), and the Administration's proposal would allow intelligence agencies to more expeditiously obtain certifications.

Section 6. Issuance of an Order. This section amends the procedures for the issuance of an order under section 105 of FISA to conform with the changes to the application requirements that would be effected by changes to section 104 discussed above.

This section also extends the initial term of authorization for electronic surveillance of a non-United States person who is an agent of a foreign power from 120 days to one year. This change reduces the time spent preparing applications for renewals relating to non-United States persons, thereby allowing more resources to be devoted to cases involving United States persons.

Section 6 also allows any FISA order to be extended for a period of up to one year. This change reduces the time spent preparing applications to renew FISA orders that already have been granted by the FISA Court, thereby increasing the resources focused on initial FISA applications. Additionally, section 6 makes important amendments to the procedures by which the Executive Branch may initiate emergency authorizations of electronic surveillance prior to obtaining a court order. Currently the Executive Branch has 72 hours to obtain court approval after emergency surveillance is initially authorized by the Attorney General. The amendment extends the emergency period to seven days. This change will help ensure that the Executive Branch has sufficient time in an emergency situation to accurately prepare an application, obtain the required approvals of senior officials, apply for a court order, and satisfy the court that the application should be granted.

This provision also modifies the existing provision that allows certain information to be retained when the FISA Court rejects an application to approve an emergency authorization. Presently, such information can be retained if it indicates a threat of death or serious bodily harm to any person. The proposed amendment would also permit such information to be retained if the information is `significant foreign intelligence information' that, while important to the security of the country, may not rise to the level of death or serious bodily harm.

Finally, section 6 adds a new paragraph that requires the FISA Court, when granting an application for electronic surveillance, to simultaneously authorize the installation and use of pen registers and trap and trace devices if such is requested by the government. This technical amendment results from the proposed change in the definition of `contents' in Title I of FISA. And, of course, as the standard to obtain a court order for electronic surveillance is substantially higher than the pen-register standard, there should be no objection to an order approving electronic surveillance that also encompasses pen register and trap and trace information.

Section 7. Use of Information. This section amends subsection 106(i) of FISA, which pertains to limitations regarding the use of unintentionally acquired information. Currently, subsection 106(i) provides that lawfully but unintentionally acquired radio communications between persons located in the United States must be destroyed unless the Attorney General determines that the communications indicate a threat of death or serious bodily harm. Section 7 amends subsection 106(i) by making it technology-neutral; we believe that the same rule should apply regardless how the communication is transmitted. The amendment also allows for the retention of unintentionally acquired information if it `contains significant foreign intelligence information.' This ensures that the government can retain and act upon valuable foreign intelligence information that is collected unintentionally, rather than being required to destroy all such information that does not fall within the current exception.

Section 7 also clarifies that FISA does not preclude the government from seeking protective orders or asserting privileges ordinarily available to protect against the disclosure of classified information. This is necessary to clarify any ambiguity regarding the availability of such protective orders or privileges in litigation.

Section 8. Weapons of Mass Destruction. This section amends sections 101, 106, and 305 of FISA to address concerns related to weapons of mass destruction. These amendments reflect the threat posed by these catastrophic weapons and would extend FISA to apply to individuals and groups engaged in the international proliferation of such weapons. Section 8 amends section 101 of FISA to include a definition of the term `weapon of mass destruction.'

Section 8 also amends the section 101 definitions of `foreign power' and `agent of a foreign power' to include groups and individuals (other than U.S. persons) engaged in the international proliferation of weapons of mass destruction. Section 8 similarly amends the definition of `foreign intelligence information.' Finally, section 8 would amend sections 106 and 305 of FISA, which pertain to the use of information, to include information regarding the international proliferation of weapons of mass destruction.

Section 9. Liability Defense. This section provides litigation protections to telecommunications companies that are alleged to have assisted the government with classified communications intelligence activities in the wake of the September 11th terrorist attacks. Telecommunications companies have faced numerous lawsuits as a result of their alleged activities in support of the government's efforts to prevent another terrorist attack. If private industry partners are alleged to cooperate with the government to ensure our nation is protected against another attack, they should not be held liable for any assistance they are alleged to have provided.

Section 10. Amendments for Physical Searches. This section amends section 303 of FISA (50 U.S.C. 1823), which relates to physical searches, to streamline the application process, update and augment the emergency authorization provisions, and increase the potential number of officials who can certify FISA applications. These changes largely parallel those proposed to the electronic surveillance application process. For instance, they include amending the procedures for the emergency authorization of physical searches without a court order to allow the executive branch seven days to obtain court approval after the search is initially authorized by the Attorney General.

This section also amends section 304 of FISA, pertaining to orders authorizing physical searches, to conform to the changes intended to streamline the application process. Additionally, section 10 permits the search of not only property that is owned, used, possessed by, or in transit to or from a foreign power or agent of a foreign power, but also property that is about to be owned, used, possessed by, or in transit to or from these powers or agents. This change makes the scope of FISA's physical search provisions coextensive with FISA's electronic surveillance provisions in this regard.

Section 11. Amendments for Emergency Pen Registers and Trap and Trace Devices. This section amends the procedures found in section 403 of FISA (50 U.S.C. 1843) regarding the emergency use of pen registers and trap and trace devices without court approval to allow the executive branch seven days to obtain court approval after the emergency use is initially authorized by the Attorney General. (The current period is 48 hours.) This change would ensure the same flexibility for these techniques as would be available for electronic surveillance and physical searches.

Section 12. Mandatory Transfer for Review. This section allows for the transfer of sensitive national security litigation to the FISA Court in certain circumstances. This provision requires a court to transfer a case to the FISA Court if: (1) the case is challenging the legality of a classified communications intelligence activity relating to a foreign threat, or the legality of any such activity is at issue in the case, and (2) the Attorney General files an affidavit under oath that the case should be transferred because further proceedings in the originating court would harm the national security of the United States.

By providing for the transfer of such cases to the FISA Court, section 12 ensures that, if needed, judicial review may proceed before the court most familiar with communications intelligence activities and most practiced in safeguarding the type of national security information involved. Section 12 also provides that the decisions of the FISA Court in cases transferred under this provision would be subject to review by the FISA Court of Review and the Supreme Court of the United States.

Section 13. Technical and Conforming Amendments. This section makes technical and conforming amendments to sections 103, 105, 106, and 108 of FISA (50 U.S.C. 1803, 1805, 1806, 1808).

Section 14. Effective Date. This section provides that these amendments shall take effect 90 days after the date of enactment of the Act, and that orders in effect on that date shall remain in effect until the date of expiration. It would allow for a smooth transition after the proposed changes take effect.

Section 15. Construction; Severability. This section provides that any provision of this Act held to be invalid or unenforceable shall be construed so as to give it the maximum effect permitted by law, unless doing so results in a holding of utter invalidity or unenforceability, in which case the provision shall be deemed severable and shall not affect the remaining sections.

SUMMARY

For all of these reasons, we urge our colleagues to reject the RESTORE Act and enact the Administration's proposal. The lives of Americans depend on it.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Steve Chabot.
Daniel E. Lungren.
Chris Cannon.
Darrell Issa.
J. Randy Forbes.
Tom Feeney.
Louie Gohmert.
Jim Jordan.

To Top

MINORITY VIEWS

We cannot join with our majority colleagues in supporting H.R. 3773, the `RESTORE Act.' This bill is clearly designed to meet a political need of the Democrat majority, and not the country's needs during a time of continued struggle against radical jihadists and other hostile acts by foreign powers. This bill fails to provide the effective tools that the Intelligence Community has repeatedly stated it needs to efficiently collect foreign intelligence information to prevent and disrupt terrorist plots.

In H.R. 3773, Congress would expressly legislate, for the first time, that a United States court will be required to approve intelligence collection on foreign targets overseas. Last April, the Director of National Intelligence (DNI) highlighted significant intelligence gaps in foreign intelligence collection efforts and asked for a legislative solution. Due to technological advancements over the years, the structure of the 1978 FISA bill caused the Government to seek and obtain court approval before targeting a foreigner overseas despite the clear legislative intent to provide a framework for collecting foreign intelligence information within the United States. The Committee majority did nothing about the gap for months, until Republicans successfully accomplished passage of the Protect America Act in early August. 1

[Footnote] Now, this Committee's formal `long-term' proposed solution to this problem is to expressly inject--for the first time--a United States court into foreign intelligence collection abroad, with a two year sunset that fails entirely to provide permanent tools to the Intelligence Community.

[Footnote 1: Indeed, we offered comprehensive FISA reform as an amendment to the FY '08 Intelligence Authorization bill during the Committee's markup and on the House floor in early May, which were rejected by the Democrats who instead voted to divert resources for environmental spying and wasteful earmarks. When the House failed to act, the DNI began a public campaign to underscore the worsening intelligence gap caused by FISA. Instead, the Committee remained focused on a historical review of a program that no longer exists, and subsequently canceled a FISA modernization hearing with the DNI pushing this critical issue into the fall. After sustained efforts by the Republicans, Democrats reluctantly moved a piece of legislation that was unacceptable to the DNI. After the Senate passed a bill that gave the Intelligence Community the tools it needed, the House finally passed a short-term FlSA fix on a bipartisan basis.]

H.R. 3773

H.R. 3773 is not the product of a bipartisan process. It does not reflect discussions between the majority and the minority, or discussions the Committee has had with the Administration. It is also important to note that the minority was not consulted on specific text before introduction of the bill, and did not receive the final text of H.R. 3773 until twenty-four hours before the markup. In the brief period we had to review the legislation before Committee consideration, we uncovered numerous, serious problems rendering this bill beyond repair.

First, notably absent from this bill is any type of retroactive liability protection for carriers alleged to have assisted the Government following the attacks of September 11, 2001. Without this liability protection, private companies--that are alleged to have done exactly what their country asked them to--would be subjected to decades of protracted litigation. Moreover, these companies face improper claims for tens of millions of dollars in damages to scores of different plaintiffs. In addition, continued litigation on this front threatens to disclose highly classified national security information potentially exposing us to great harm from our enemies. Failing to provide retroactive liability protection to these companies jeopardizes the prospects for long-term cooperation necessary between the Intelligence Community and the private sector. Notwithstanding this, the majority has hinged this vital retroactive liability provision on a political battle with the White House over documents relating to the Terrorist Surveillance Program (TSP) described by the President, despite having reviewed relevant documents and conducted extensive interviews with former Attorney General Ashcroft and key Justice Department officials.

Second, this bill expressly requires court approval to conduct surveillance on foreign intelligence targets overseas. The bill contains a hollow statement that a court order is not required to intercept communications between non-U.S. persons that are not located within the United States that fails to consider the practical reality of intelligence collection in the 21st century. This would limit the authority to only instances where it could be reasonably determined in advance that a targeted person would communicate with no U.S. person, and would make no call to the United States. Therefore, simply stating that an order shall not be required when both ends of a communication are known has no practical value for our intelligence professionals in the field.

Third, the bill narrows the type of foreign intelligence that the Government can collect under the so-called `basket warrants' to include only national security foreign intelligence. This will force NSA analysts to make real-time calls as to whether they are gathering foreign intelligence for national security reasons or for other foreign affairs purposes. As we've learned from 9/11, connecting the dots is essential, and we need not be constructing new walls and creating more hoops for our intelligence professionals to jump through when collecting information that may turn out to be vital to saving lives. The original purpose behind modernizing FISA is to collect foreign intelligence from foreign targets overseas with greater efficiency, and not to create new barriers. Foreign targets located overseas have no privacy rights under U.S. laws and we should not be involving United States courts in approving warrants to collect information on them.

Fourth, H.R. 3773 would require the Intelligence Community to compile a new database to track instances where U.S. person information was incidentally acquired when surveilling foreign intelligence targets overseas, and to report on databases to Congress. We question how the civil liberties of U.S. persons are better protected by creating a new, separate database of indefinite duration to track this information. Normally, U.S. person information that does not contain foreign intelligence information would be either expunged or age-off of NSA's databases. As such, this provision would alarmingly heighten the intrusion on the privacy of U.S. persons rather than protect it. The bill already contains extensive provisions for reporting of such instances to the Committees.

Fifth, in addition to failing to provide retroactive liability protection, this bill fails to provide any liability protection for third parties who may assist the government under an emergency authorization prior to obtaining a `basket order.' Not including prospective liability protection in emergency authorizations jeopardizes long-term prospects for cooperation with private sector entities. The majority's failure to address this issue illustrates either sloppy drafting indicative of the hasty, unilateral drafting process this bill underwent, or a disregard for the essential service that third parties provide to the Intelligence Community. We assume the former is the case, but this flaw remains in the bill post-markup.

Additionally, this bill contains no provision allowing third parties asked to assist the Government to challenge orders of the FISA Court. This protection was specifically provided in the Protect American Act, and it is curious that it's left out of this bill. Again, this omission appears to be a product of hasty drafting and a failure to collaborate and seek input when drafting the text of the bill.

Sixth, we cannot support a bill that contains a sunset provision for just over two years from now. The majority provides for a sunset of these new provisions on December 31, 2009, thereby failing to provide any long-term, predictable authority and capability to the Intelligence Community or outside parties. The Administration has testified before Congress several times citing the Intelligence Community's need for a modernized FISA bill and that it lacks the tools necessary to protect the country. Our work to permanently modernize FISA now spans two congresses, and nearly two years, and the majority would have this bill expire just over two years from now. Every time the law changes in a substantive way, the Government must go through an arduous, time consuming process of implementing those changes, putting into place new procedures, and retraining personnel on those new procedures. It can take months to fully implement such substantial changes to the law. The IC has asked for a permanent solution to a fundamental problem, and this Committee has responded with a dramatically different proposal that does not meet their needs and contains a two year sunset. On this timeframe, this issue is certain to consume this Committee for the next two years, and will leave the Intelligence Community in a tenuous position. We are committed to providing permanent, effective tools to the Intelligence Community to best carry out their mission, and are disheartened to learn that the Majority is not committed to doing the same.

Seventh, the Committee also expanded the role of the FISC into foreign intelligence collection overseas. The FISC was originally created as part of a structure to conduct foreign intelligence surveillance within the United States. Section 3( e) of the RESTORE Act however, would permit judges of the FISC to modify an application for a `basket order' to conduct surveillance on foreign targets foreign countries, but contains no guidance with respect to standard of review. It is beyond us why the majority believes the appropriate role of a federal court is to oversee foreign intelligence collection and what link this role would have to protecting civil liberties of United States persons. The responsibility for foreign intelligence collection abroad lies squarely with the President under the Constitution and overwhelming precedent of the courts.

In addition, FISC judges would be given the authority--in fact the requirement--to assess compliance with the order every 120 days--again with no restriction to the scope of review or remedy. This would put judges in the extraordinary position of supervising intelligence professionals or even U.S. troops overseas. Any court review of the procedures, or processes for surveillance of foreign terrorists in foreign places should allow much greater deference to our foreign intelligence officials who have the expertise and authority to conduct such surveillance. This provision, like so many others in this bill, ignores the intent behind the 1978 FISA bill, which was not to hinder foreign intelligence gathering, but rather to provide a framework for intelligence gathering in the United States.

Eighth, the Committee imposes a burdensome auditing requirement on the Intelligence Community and the Department of Justice Inspector General (DOJ IG). This provision requires the DOJ IG to audit compliance with the procedures in 105B every 120 days. Not only is this incredibly burdensome, but it is nonsensical to require non-intelligence personnel (the DOJ IG) to perform an audit of Intelligence Community professionals. The NSA has an independent Inspector General that would be the more appropriate body to conduct audits on the NSA.

Ninth, the bill seeks additional investigation into the Terrorist Surveillance Program, which is no longer in existence. Section seven of the bill requires the DOJ IG to perform an audit of TSP, and a section newly added during markup would require the President to fully inform the Intelligence committees on TSP. An audit by the DOJ IG would, once again, impose non-Intelligence Community personnel into the work of the Intelligence Community. More significantly, the DOJ IG auditing provision is of questionable constitutionality, as it would require an executive branch agency to audit the conduct of the President. It also requires the President, a classifying authority, to grant access to extremely sensitive information, and requires the IG to acquire and produce documents containing legal advice given to the President by his lawyers.

More importantly, we remain baffled by the majority's continued contention that it has not been fully informed by the Executive Branch on these sensitive intelligence matters. Democratic Committee members have been fully and extensively briefed on TSP, as has the current Speaker of the House, since its inception. In addition, just four months ago this Committee conducted an extensive, comprehensive historical review of TSP. This Committee has interviewed or heard testimony from many current and former senior DOJ, NSA, and ODNI officials and has reviewed countless documents in connection with these activities. In addition, the Committee received briefings on the legal foundation for TSP and has available an unclassified, 42 page white-paper from the Department of Justice detailing the legal basis for TSP, entitled `Legal Authorities Supporting the Activities of the National Security Agency Described by the President.' It is disingenuous and misleading to the American people for the majority to contend that it has not been fully briefed about these classified NSA surveillance activities. The DOJ IG audit provision is, essentially, an end run around the traditional mechanisms for seeking documents from the Executive Branch. The Committee has been negotiating with the White House on outstanding document requests, and the United States Code is not the appropriate place to air these disputes.

Both of the aforementioned DOJ IG audits, as well as other reporting requirements in this bill would be provided jointly to the Judiciary Committees. The Rules of the House provide exclusive jurisdiction over intelligence sources and methods to the Committee. To the extent that these reporting requirements contemplate providing materials containing sources and methods, these provisions are inconsistent with the House Rules. We remain committed to preserving this Committee's jurisdiction under the Rules of the House, and are similarly discouraged that the majority is not.

Finally, Section 10 restates the existing statutory provision that FISA is the exclusive means for conducting electronic surveillance for the purpose of gathering foreign intelligence information. The exclusivity provision is superfluous and arguably could constitute an unconstitutional infringement of the President's constitutional authority. The bill also contains a provision purporting to require a specific statutory authorization to conduct electronic surveillance that may be subject to constitutional challenge. The President's constitutional authority to take such measures he deems necessary to protect the Nation from potential future attacks or hostile acts of a foreign power cannot be limited by simply restating a statutory provision. By repeating a provision that it knows is already contained in FISA, and is of questionable constitutionality, the majority insists on focusing this debate on the past and not the present need to permanently modernize FISA. Our focus should be on modernizing FISA and giving the Intelligence Community the tools they need to protect this country, and not on partisan political rhetoric concerning a program that no longer exists.

THE PROTECT AMERICA ACT

We offered a substitute amendment, which would have made PAA permanent and provided retroactive liability protection to third parties alleged to have assisted the Government following the attacks on September 11, 2001, that was summarily rejected by the majority citing the now debunked `parade of horribles.' The PAA represented a strong bipartisan consensus that was supported by forty-one Democrats in August and gave the Intelligence Community the tools it needed.

The Administration has been implementing PAA with extraordinary transparency to this Committee. Staff and Members have been briefed several times, including at the NSA, have received copies of relevant documents, and have heard testimony from Administration officials in both closed and open session.

The Committee specifically asked Administration witnesses to put into writing their views about the reach of this bill and the concerns that had been raised. In a letter, dated September 14, 2007, from Assistant Attorney General Kenneth L. Wainstein, the Justice Department made a rare, public written statement rebuking the `parade of horribles' that the majority cited and delineating how the Executive Branch will interpret the law. Specifically, Mr. Wainstein stated that these hypotheticals are inconsistent with a plain reading of the entire FISA statute and that:

The PAA leaves undisturbed FISA's definition of electronic surveillance as it applies to domestic-to-domestic communications and surveillance targeting persons located in the United States, and that the Executive Branch will not use the PAA to `target' a person in the U.S. by seeking foreign information `concerning' a person abroad.

The Executive Branch will not use the PAA to conduct physical searches of the homes or effects of Americans, including physical searches of U.S. mail, U.S. homes or businesses of foreign intelligence targets outside the U.S., and personal computers or hard drives of individuals in the U.S. without a court order.

That the Executive Branch will not use PAA to reverse target U.S. persons inside the United States, as doing so would be a violation of FISA.

That 105B of PAA does not authorize the collection of, for example, of medical or library records for foreign intelligence purposes and that the Executive Branch will not use this authority to obtain business records of individuals located in the U.S. on the theory that they `concern' persons outside the U.S.

Further, the Administration has repeatedly expressed its willingness to consider language from the Committee that would clarify or narrow language in the PAA to address these perceived ambiguities. Notwithstanding such transparency, and willingness to clarify the bill, this Committee passed a bill that essentially takes three steps back following our one, big step forward in enacting the PAA. This committee has not raised any specific concerns with actual implementation and, to the contrary has been continually reassured by those implementing the bill. With all of the questions and concerns addressed, the majority instead reverted to an ill-conceived partisan bill.

Continuation of the PAA ensures that the IC will not go dark against terrorists, that we don't give radical jihadists greater rights than those afforded to Americans in court ordered surveillance in criminal cases, and that we have a permanent solution to the intelligence gaps that we potentially face. The House should act immediately to accomplish these goals.
Peter Hoekstra.
Terry Everett.
Elton Gallegly.
Heather Wilson.
Mac Thornberry.
John McHugh.
Todd Tiahrt.
Mike Rogers.
Darrell Issa.

To Top

No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)