[Infowarrior] - The Problems with the FISA Bill

[Richard Forno]

A Threat to the Privacy Rights of All Americans
The Problems with the FISA Bill

By Sen. RUSS FEINGOLD

http://www.counterpunch.org/feingold07092008.html

A number of Senators came to the floor prior to the Fourth of July  
recess to debate the FISA legislation, and more debate has occurred  
this week. We have heard arguments for and against the legislation,  
and Senators have cited a variety of reasons for their positions.

Several have defended the bill by arguing that the legislation  
includes improvements compared to the Senate bill we passed earlier  
this year. I was not surprised to hear that line of argument. I agree  
that there are some improvements to the Senate bill contained in the  
legislation that we are now considering. But those changes are not  
nearly enough to justify supporting the bill, as I will explain in a  
few moments.

I was surprised to hear, however, several Senators still defending the  
legality of the President’s warrantless wiretapping program, and still  
arguing that Congress had somehow signed off on this program years ago  
because the Gang of Eight was notified. Mr. President, I thought we  
were well past these arguments. Two and a half years after this  
illegal program became public, I cannot believe that we are still  
debating the legality of this program on the Senate floor, and that  
anyone seriously believes that merely notifying the Gang of Eight –  
while keeping the full intelligence committees in the dark -- somehow  
represents congressional approval.

Mr. President, it could not be clearer that this program broke the  
law, and this President broke the law. Not only that, but this  
administration affirmatively misled Congress and the American people  
about it for years before it finally became public. So if we are going  
to go back and discuss these issues that I thought had long since been  
put to rest, let’s cover the full history.

Here is the part of the story that some seem to have forgotten. In  
January 2005, eleven months before the New York Times broke the story  
of the illegal wiretapping program, I asked then-White House Counsel  
Alberto Gonzales at his confirmation hearing to be Attorney General  
whether the President had the power to authorize warrantless wiretaps  
in violation of the criminal law. Neither I nor the vast majority of  
my colleagues knew it then, but the President had authorized the NSA  
program three years before, and Mr. Gonzales was directly involved in  
that issue as White House Counsel. At his confirmation hearing, he  
first tried to dismiss my question as “hypothetical.” He then  
testified that “it’s not the policy or the agenda of this President to  
authorize actions that would be in contravention of our criminal  
statutes.”

Well, Mr. President, the President’s wiretapping program was in direct  
contravention of our criminal statutes. Mr. Gonzales knew that, but he  
wanted the Senate and the American people to think that the President  
had not acted on the extreme legal theory that the President has the  
power as Commander in Chief to disobey the criminal laws of this  
country.

The President, too, misled Congress and the American public. In 2004  
and 2005, when Congress was considering the reauthorization of the USA  
Patriot Act, the President went out of his way to assure us that his  
administration was getting court orders for wiretaps, all the while  
knowing full well that his warrantless wiretapping program was ongoing.

Here’s what the President said on April 20, 2004: “Now, by the way,  
any time you hear the United States government talking about wiretap,  
it requires – a wiretap requires a court order. Nothing has changed,  
by the way. When we’re talking about chasing down terrorists, we’re  
talking about getting a court order before we do so.”

And again, on July 14, 2004: “The government can’t move on wiretaps or  
roving wiretaps without getting a court order.”

And listen to what the President said on June 9, 2005: “Law  
enforcement officers need a federal judge’s permission to wiretap a  
foreign terrorist’s phone, a federal judge’s permission to track his  
calls, or a federal judge’s permission to search his property.  
Officers must meet strict standards to use any of these tools. And  
these standards are fully consistent with the Constitution of the U.S.”

So please, let’s not pretend that the highly classified notification  
to the Gang of Eight, delivered while the President himself was  
repeatedly presenting a completely different picture to the public,  
suggests that Congress somehow acquiesced to this program. As the  
members of this body well know, several members of the Gang of Eight  
at the time raised concerns when they were told about this, and  
several have since said they were not told the full story. And of  
course all of them were instructed not to share what they had learned  
with a single other person.

Mr. President, I also cannot leave unanswered the arguments mounted in  
defense of the legality of the NSA program.

I will not spend much time on the argument that the Authorization for  
Use of Military Force that Congress passed on September 18, 2001,  
authorized this program. That argument has been thoroughly  
discredited. In the AUMF, Congress authorized the President to use  
military force against those who attacked us on 9/11, a necessary and  
justified response to the attacks. We did not authorize him to wiretap  
American citizens on American soil without going through the judicial  
process that was set up nearly three decades ago precisely to  
facilitate the domestic surveillance of spies and terrorists.

Senators have also dragged out the same old tired arguments about the  
President’s supposed inherent executive authority to violate FISA.  
They argue that a law passed by Congress can’t trump the President’s  
power under the Constitution. That argument may sound good, but it  
assumes what it is trying to prove – that the Constitution gives the  
President the power to authorize warrantless wiretaps in certain  
cases. You can’t simply say that any claim of executive power prevails  
over a statute – at least, not if you are serious about the rule of  
law, and about how to interpret the Constitution. The real question  
is, when a claim of executive power and a statute arguably conflict,  
how do you resolve that conflict?

Fortunately, the Supreme Court has told us how to answer that  
question. We are talking here about the President acting in direct  
violation of a criminal statute. That means his power was, as Justice  
Jackson said in his famous and influential concurrence in the Steel  
Seizure cases half a century ago, “at its lowest ebb.” In other words,  
when a President argues that he has the power to violate a specific  
law, he is on shaky ground. That’s not just my opinion – it’s what the  
Supreme Court has made clear. No less an authority than the current  
Chief Justice of the United States, John Roberts, repeatedly  
recognized in his confirmation hearings that Justice Jackson’s three- 
part test is the appropriate framework for analyzing questions of  
executive power. In early 2006, a distinguished group of law  
professors and former executive branch officials wrote a letter  
pointing out that “every time the Supreme Court has confronted a  
statute limiting the Commander-in-Chief’s authority, it has upheld the  
statute.”

The Senate reports issued when FISA was enacted confirm the  
understanding that FISA overrode any pre-existing inherent authority  
of the President. The 1978 Senate Judiciary Committee report stated  
that FISA “recognizes no inherent power of the president in this  
area.” And “Congress has declared that this statute, not any claimed  
presidential power, controls.”

And contrary to what has been said on this floor, no court has ever  
approved warrantless surveillance in violation of FISA based on some  
theory of Article II authority. The Truong case that so often gets  
hauled out to make this argument was a Vietnam-era case based on  
surveillance that occurred before FISA was enacted, so it could not  
have decided this issue. And the issue before the FISA Court of Review  
in 2002 had nothing to do with inherent presidential authorities. Yet  
these cases are repeatedly cited by supporters of the President,  
complete with large charts of the supposedly relevant quotations. The  
fact is that not a single court – not the Supreme Court or any other  
court – has considered whether, after FISA was enacted, the President  
nonetheless had the authority to bypass it and authorize warrantless  
wiretaps.

In fact, Mr. President, as the Senator from Pennsylvania and I  
discussed on the floor yesterday, just last week a federal district  
court strongly indicated that were it to reach that issue, it would  
find that the President must in fact follow FISA. The court was  
considering whether the state secrets privilege applies to claims  
brought under the FISA civil liability provisions, and found that it  
does not. Its reasoning was based on the conclusion that Congress had  
spoken clearly that it intended FISA and the criminal wiretap laws to  
be the exclusive means by which electronic surveillance is conducted,  
and had fully occupied the field in this area, replacing any otherwise  
applicable common law. Here is what the court said: “Congress appears  
clearly to have intended to – and did – establish the exclusive means  
for foreign intelligence surveillance activities to be conducted.  
Whatever power the executive may otherwise have had in this regard,  
FISA limits the power of the executive branch to conduct such  
activities...”

And a district court in Michigan also has held that the President’s  
wiretapping program was unconstitutional, although that decision was  
reversed on procedural grounds by the Sixth Circuit. So to the extent  
there is any case law that actually addresses this issue, it undercuts  
the administration’s arguments. It certainly does not support those  
arguments.

Mr. President, we also have heard that past American presidents have  
cited executive authority to order warrantless surveillance. But of  
course those past presidents – Presidents Wilson and Roosevelt are  
often cited – were acting before the Supreme Court decided in 1967  
that our communications are protected by the Fourth Amendment, and  
before Congress decided in 1978 that the executive branch can no  
longer unilaterally decide which Americans to wiretap. So those  
examples are simply not relevant.

In sum, the arguments that the President has inherent executive  
authority to violate the law are baseless. It’s not even a close case.  
And the repeated efforts here in the Senate to pretend otherwise are  
very discouraging.

Mr. President, it may seem that I am going over ancient history  
because this program is no longer operating outside the law. But this  
is directly relevant to the current debate. The bill the Senate is  
considering would grant retroactive immunity to any companies that  
cooperated with a blatantly illegal program that went on for more than  
five years – and that the administration repeatedly misled Congress  
about.

If Congress short-circuits these lawsuits, we will have lost a prime  
opportunity to finally achieve accountability for these years of law- 
breaking. That’s why the administration has been fighting so hard for  
this immunity. It knows that the cases that have been brought directly  
against the government face much more difficult procedural barriers,  
and are unlikely to result in rulings on the merits.

These lawsuits may be the last chance to obtain a judicial ruling on  
the lawfulness of the warrantless wiretapping program. It’s bad enough  
that Congress abdicated its responsibility to hold the President  
accountable for breaking the law. Now it is trying to absolve those  
who allegedly participated in his lawlessness. Mr. President, this  
body should be condemning this administration for its law-breaking –  
not letting the companies that allegedly cooperated off the hook.

And this body certainly should not grant the government new, over- 
expansive surveillance authorities, which brings me to the part of the  
bill that in some ways concerns me even more than the immunity  
provision. Let me explain why I am so concerned about the new  
surveillance powers granted in this bill, and why the modest  
improvements made to this part of the bill don’t go nearly far enough.

First, the FISA Amendments Act would authorize the government to  
collect all communications between the U.S. and the rest of the world.  
That could mean millions upon millions of communications between  
innocent Americans and their friends, families, or business associates  
overseas could legally be collected. Parents calling their kids  
studying abroad, emails to friends serving in Iraq – all of these  
communications could be collected, with absolutely no suspicion of any  
wrongdoing, under this legislation.

Second, like the earlier Senate version, this bill fails to  
effectively prohibit the practice of reverse targeting – namely,  
wiretapping a person overseas when what the government is really  
interested in is listening to an American here at home with whom the  
foreigner is communicating. The bill does have a provision that  
purports to address this issue. It prohibits intentionally targeting a  
person outside the U.S. without an individualized court order if,  
quote, “the purpose” is to target someone reasonably believed to be in  
the U.S. At best, this prevents the government from targeting a person  
overseas as a complete pretext for getting information on someone in  
the U.S. But this language would permit intentional and possibly  
unconstitutional warrantless surveillance of an American so long as  
the government has any interest, no matter how small, in the person  
overseas with whom the American is communicating. The bill does not  
include language that had the support of the House and the vast  
majority of the Senate’s Democratic caucus, to require the government  
to obtain a court order whenever a significant purpose of the  
surveillance is to acquire the communications of an American in the  
U.S. The administration’s refusal to accept that reasonable  
restriction on its power is telling.

Third, the bill before us imposes no meaningful consequences if the  
government initiates surveillance using procedures that have not been  
approved by the FISA Court, and the FISA Court later finds that those  
procedures were unlawful. Say, for example, the FISA Court determines  
that the procedures were not even reasonably designed to wiretap  
foreigners outside the U.S., rather than Americans here at home. Under  
the bill, all that illegally obtained information on Americans can be  
retained and used. Once again, there are no consequences for illegal  
behavior.

Now, unlike the Senate bill, this new bill does generally provide for  
FISA Court review of surveillance procedures before surveillance  
begins, and that is one of the changes that has been touted by  
supporters of the bill. But the bill also says that if the Attorney  
General and Director of National Intelligence certify that they don’t  
have time to get a court order and that intelligence important to  
national security may be lost or not timely acquired, then they can go  
forward without judicial approval. This is a far cry from allowing an  
exception to FISA Court review in a true emergency, because arguably  
all intelligence is important to national security and any delay at  
all might cause some intelligence to be lost. So I am concerned that  
this ‘exigency’ exception could very well swallow the rule and  
undermine any presumption of prior judicial approval.

Fourth, this bill doesn’t protect the privacy of Americans whose  
communications will be collected in vast new quantities. The  
Administration’s mantra has been: “don’t worry, we have minimization  
procedures.” But, Mr. President, minimization procedures are nothing  
more than unchecked executive branch decisions about what information  
on Americans constitutes “foreign intelligence.” That is why on the  
Senate floor, I joined with Senator Webb and Senator Tester earlier  
this year to offer an amendment to provide real protections for the  
privacy of Americans, while also giving the government the flexibility  
it needs to wiretap terrorists overseas. This bill relies solely on  
inadequate minimization procedures to protect innocent Americans. They  
are simply not enough.

Mr. President, as I said at the outset, some supporters of the bill  
have pointed to improvements made since the Senate passed its bill  
earlier this year. I appreciate that changes have been made. But those  
changes are either inadequate, or they do not go to the core privacy  
issues raised by this bill. In fact, as the Vice Chairman of the  
Senate Intelligence Committee said just yesterday, the bill before us  
is “basically the Senate bill all over again” with only “cosmetic  
fixes.”

For example, I am pleased that the bill provides for FISA Court review  
of targeting and minimization procedures. But as I mentioned, there is  
a potentially gaping loophole allowing the executive branch to go  
forward with surveillance without court review – an exception that  
could swallow the rule. The bill also now explicitly directs the FISA  
Court to consider whether the government’s procedures comply with the  
Fourth Amendment – but that is an authority it should have had anyway.

The bill includes an Inspector General review of the illegal program,  
which is a positive change, but it does not make up for the lawsuits  
that are going to be dismissed as a result of this legislation. And I  
strongly support the strengthened exclusivity language, which may  
deter a future administration from engaging in lawless behavior. But  
let’s not lose sight of the fact that FISA as originally enacted  
clearly stated that it and the criminal wiretap laws were the  
exclusive means for conducting electronic surveillance. This was  
confirmed in the strongest terms possible by a federal district court  
just last week. Only under the unprecedented legal theories of this  
administration could that clear language be ignored, requiring  
Congress to pass language that effectively says – No, we really meant  
it. And, if this bill is enacted, I am by no means reassured that this  
Administration, which repeatedly broke the law and misled the public  
over the past seven years, will now respect the exclusivity of FISA.

Now, the bill does contain a key protection for Americans traveling  
overseas. It says that if the government wants to intentionally target  
Americans while they are outside the country, it has to get an  
individualized FISA court order based on probable cause. That is a  
great victory, and one we should be proud of. But it does not override  
the greatly expanded authorities in this bill to collect other types  
of communications involving Americans.

In sum, these improvements are not enough. They are nowhere close. And  
so, Mr. President, I must strongly oppose this bill.

When you consider how we got here, this legislation is particularly  
discouraging. We discovered in late 2005 that the President had  
authorized an illegal program in blatant violation of a statute, and  
that Congress and the public had been misled in a variety of ways  
leading up to this public revelation. Congress, to its credit, held  
hearings on the program, but was largely stonewalled by the  
administration for many months until the administration grudgingly  
agreed to brief the intelligence committees, and more recently the  
judiciary committees. Nonetheless, the vast majority of the House and  
Senate have never been told what happened. In 2006, when the  
Republicans tried to push through legislation to grant massive new  
surveillance authorities to the executive branch, we stopped it. But  
now, in a Democratic-controlled Congress, not only did we pass the  
Protect America Act, but we are now about to extend for more than four  
years these expansive surveillance powers – and we are about to grant  
immunity to companies that are alleged to have participated in the  
administration’s lawlessness.

Mr. President, I sit on the Intelligence and Judiciary Committees, and  
I am one of the few members of this body who has been fully briefed on  
the warrantless wiretapping program. And, based on what I know, I can  
promise that if more information is declassified about the program in  
the future, as is likely to happen either due to the Inspector General  
report, the election of a new President, or simply the passage of  
time, members of this body will regret that we passed this  
legislation. I am also familiar with the collection activities that  
have been conducted under the Protect America Act and will continue  
under this bill. I invite any of my colleagues who wish to know more  
about those activities to come speak to me in a classified setting.  
Publicly, all I can say is that I have serious concerns about how  
those activities may have impacted the civil liberties of Americans.  
If we grant these new powers to the government and the effects become  
known to the American people, we will realize what a mistake it was,  
of that I am sure.

So I hope my colleagues will think long and hard about their votes on  
this bill, and consider how they, and their constituents, will feel  
about this vote five, ten or twenty years from now. I am confident  
that history will not judge this Senate kindly if it endorses this  
tragic retreat from the principles that have governed government  
conduct in this sensitive area for 30 years. I urge my colleagues to  
stand up for the rule of law and defeat this bill.

Russ Feingold represents Wisconsin in the US senate.