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Sent: 25 September 2006 21:28
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Cc: CDT Policy Posts
Subject: Congress Consider Dangerous NSA Bills
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology
(1) Congress Poised to Consider Dangerous NSA Bills
(2) Alice in Wonderland: It's Not Surveillance if Congress Says It Isn't
(3) Both Bills Contain Additional Provisions That Threaten Civil
Liberties
(4) Make Your Voice Heard - Call Your Senators and Representatives
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(1) Congress Poised to Consider Dangerous NSA Bills
Both Houses of Congress are expected this week to consider partisan
bills that would both legalize and expand the President's warrantless
wiretapping program, allowing the intelligence agencies to tap the
telephone and Internet communications of American citizens without a
court order.
The version in the House of Representatives is H.R. 5825, sponsored
by Rep. Heather Wilson (R-N.M.). The Senate bill, S. 3931, was
drafted by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.)
and introduced by Majority Leader Bill Frist (R-Tenn.).
Proponents and some press accounts have mischaracterized these bills
as providing judicial review of the President's program and as
"modernizing" the Foreign Intelligence Surveillance Act. In fact,
these bills would prevent meaningful judicial review of the
President's program and would both ratify and expand to an
unprecedented level the government's authority to wiretap Americans
without a warrant.
The bills are of dubious constitutionality. They would offer no
identifiable improvement in national security, while turning the
vacuum cleaner approach of the National Security Agency on the
communications of innocent Americans. The bills appear to be
entirely unnecessary. Members of Congress secretly briefed on the
President's surveillance program have said that it could be conducted
with court orders.
In the Senate, there is a bipartisan alternative, S. 3001, sponsored
by Sen. Diane Feinstein (D-CA) and, remarkably enough, Chairman
Specter. The Specter-Feinstein bill would address the specific
concerns about current law identified by the Administration, while
preserving the core checks and balances laid down in the Foreign
Intelligence Surveillance Act of 1978.
In the House, the Judiciary Committee and the Committee on
Intelligence (HPSCI) reported different versions of the Wilson bill
and rejected the moderate bipartisan alternatives. The House
leadership, through the Rules Committee, will likely meld the two
versions of the Wilson bill and send a composite to the House floor
for a vote this week.
In the Senate, the Specter bill has been introduced as a stand-alone
bill (S. 3931), but the leadership has said that it might be
considered in a package (S. 3929) that includes the recent compromise
authorizing military commissions for terrorists. These issues are too
important and too complex to be combined in a single bill. Congress
should give the privacy rights of the American people and the
national security needs of the intelligence agencies the full
consideration they deserve by voting on the NSA bill separately - if
at all.
More information: http://www.cdt.org/security/nsa
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(2) Alice in Wonderland: It's Not Surveillance if Congress Says It Isn't
Although not identical, the Specter and Wilson bills are similar in
many respects. Both bills would permit the National Security Agency
to turn its vacuum cleaners on American citizens and create a vast
database of information, which the government could data mine at
will, outside any judicial or congressional oversight, in a fashion
reminiscent of the Total Information Awareness program.
None of these changes is necessary to meet the terrorist threat. In
fact, a truly updated and technology-neutral approach would permit
the government, with a court order, to intercept communications
regardless of the sophistication of the terrorists.
The bills achieve their results in an Alice in Wonderland fashion:
they define large categories of electronic surveillance as not being
electronic surveillance.
Under the Foreign Intelligence Surveillance Act (FISA), if the
collection of information fits within the Act's definition of
"electronic surveillance," then it requires a court order or must
fall under one of the Act's exceptions.
However, if the recording of conversations and the collection of
information are excluded from the definition of electronic
surveillance, then they not covered by the Act and can be carried on
without a warrant and without reporting to Congress.
The radically revamped Specter bill and the Wilson bill would cut
back the definition of electronic surveillance with the following
results:
President's Program - No Longer Electronic Surveillance: With the
sweep of a legislative wand, the bills would exclude the President's
warrantless surveillance program from coverage under FISA, because
the President's program targets suspected terrorists who are outside
the United States, even though it collects also the conversations of
US citizens on the US end of those communications. The problem with
this approach, of course, is that the person on the phone or email in
the United States has rights too. That party may be a journalist, an
aid worker, or any of a number of other types of totally innocent
citizens, yet under the Specter and Wilson bills their conversations
and email would be intercepted without a warrant.
Scooping Up International Communications - No Longer Electronic
Surveillance: The bills don't stop there. While the President has
assured the American public that his program is limited to situations
where someone who may be associated with al Qaeda is overseas,
calling into the US, the Specter and Wilson bills would authorize
warrantless interception of every single call into and out of the
United States, so long as the government was not targeting anyone in
particular.
Purely Domestic Calls - May Not be Electronic Surveillance: The bills
even go a step further and allow the recording of purely domestic
calls, so long as the surveillance was "directed at" a foreign power
or agent. Under this approach, any citizen's calls to the Israeli
embassy or the New York office of the Greek-owned Olympic Airways
could be recorded without a warrant.
Call-Identifying and Pattern Data for Domestic Communications- No
Longer Electronic Surveillance: Finally, the bills' crabbed
definition means that the government can record who is calling whom
and how often, and record the "To" and From" lines on all email, even
for purely domestic communications, so long as it was targeting no
one in particular. Under this approach, for the first time ever, NSA
would be able to train its vacuum cleaner on the domestic calls and
email of US citizens, creating a permanent database capable of being
data mined or searched without even a subpoena.
Singly or together, the ramifications of these changes are bracing,
especially with the dismantling of the wall between intelligence and
law enforcement agencies.
The Specter bill and the version of the Wilson bill reported by the
House Judiciary Committee give the Attorney General the power to
issue directives to phone companies and Internet service providers
compelling them to cooperate with the government in conducting
warrantless surveillance. The Attorney General orders can be
enforced in court and any service provider that fails to obey can be
found in contempt. Although service providers would have the right
to challenge the legality of a directive, it is unlikely that any
service provider would initiate a challenge, since the bills also
entitle the companies to be paid for assisting in the surveillance
and give them complete immunity for compliance with an order. (The
version of the Wilson bill reported by the Intelligence Committee
states that the Attorney General "may require, by written
certification" cooperation in warrantless surveillance but it does
not have such explicit enforcement provisions.)
The Wilson and Specter bills also would allow the government to apply
for an order within -- and conduct warrantless surveillance in an
emergency for -- seven days, up from three days under the current
version of FISA.
Senators Larry Craig (R-Idaho), John Sununu (R-N.H.) and Lisa
Murkowski (R-Alaska) on Sept. 25 announced that they had agreed to
support the Specter bill. They cited changes made when Sen. Frist
introduced the Specter bill as S. 3931. The changes make no
difference to the fundamentals of the bill. They do not address the
fundamental concern that the bill carves out of FISA large amounts of
domestic surveillance.
The Senators cite deletion of language that raises questions about
the roles Congress and the Executive Branch play in regulating
surveillance activity within the United States.
The deleted language was meaningless. The current version of the
bill (introduced by Sen. Frist) still repeals the exclusivity
provision and renders FISA optional, encouraging the President to
proceed on his program and others without judicial approval and
setting up case-by-case constitutional challenges of how far the
President can go without a court order.
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(3) Both Bills Contain Additional Provisions That Threaten Civil
Liberties
The bills are similar in many respects, but they also contain some
unique provisions. A conference committee comprised of key members
of the House and Senate would have to work out any differences in the
bills after they were passed by both bodies of Congress.
Chairman Specter's Bill
-Exclusivity versus Blank Check
Chairman Specter negotiated his bill with the Administration and, in
exchange for including several dangerous provisions in the bill,
obtained an unwritten and unenforceable promise that the President
would allow the FISA court to determine whether his warrantless
wiretapping program is legal. In exchange for this promise, Chairman
Specter agreed to repeal the "exclusivity" provision that made FISA
(in the intelligence gathering context) and Title 18 (in the criminal
context) the exclusive means by which the government could conduct
electronic surveillance inside the United States. Deleting the
"exclusivity" provision means that this President and all future
Presidents need never submit another request to the FISA court.
Whether that would be constitutional or not is entirely unclear,
casting a cloud over intelligence gathering.
-Program Warrants
Chairman Specter also agreed to provisions that would authorize a
domestic spying program far broader and more intrusive on the privacy
of innocent Americans than the one the President and Attorney General
have described. The Chairman's bill would authorize surveillance
program warrants that could be directed at domestic calls without the
government having to identify whom it is targeting, in stark
contrast to the individualized warrants normally mandated by the
Fourth Amendment. These program warrants could be approved for an
initial 90-day period and then could be renewed for an indefinite
duration.
-Forum Shopping by the Government
What's more, rather than ensuring judicial review of the
constitutional merits of the President's program, the Specter bill
actually undermines judicial review by allowing the government to
seek dismissal in any district court of any challenge to a
communications intelligence activity of the government or, if the
government thinks the district court will rule against it, to
transfer the challenge to the Foreign Intelligence Surveillance Court
of Review (FISCR).
Over 30 such cases are currently pending in federal courts around the
country. Chairman Specter's bill would allow the government to seek
dismissal of them on procedural grounds in the district court or to
have all of them transferred to the FISCR, where the government would
still be able to assert the standing doctrine and the state secrets
privilege and also would have the benefit the FISCR's special
procedures that allow the government to present its evidence in
secret, making it more difficult for parties challenging the
government program to overcome the evidentiary burdens they would face.
-Expanded Lone Wolf Provision
The Specter bill also contains a provision that is similar to the
PATRIOT Act's "lone wolf" provision. It would allow the government
to obtain a FISA order to wiretap a non-US person who was engaged in
activities relating to the development or proliferation of "weapons
of mass destruction," but who was not connected to a "foreign power."
Representative Wilson's Bill
Both the House Judiciary Committee and the House Permanent Select
Committee on Intelligence (HPSCI) passed versions of Representative
Wilson's bill. The House Rules Committee will probably devise a
single version of the bill that the full House will vote on this
week. Although the House Judiciary Committee adopted some innocuous
amendments, like a requirement that the Attorney General report on
minimization procedures to the congressional intelligence committees
and a finding that Congress has the authority to regulate the
President's inherent power to gather foreign intelligence, the bills
also contain several dangerous provisions that are not in the Senate
version of the bill.
-Immunity for Warrantless Surveillance Activity
In addition to expanding warrantless wiretapping as discussed above
by simply defining much interception of telephone and Internet
communications to not be electronic surveillance, the House Judiciary
Committee version would immunize from liability any person from any
activity related to any electronic surveillance program that was
intended to protect the US from a terrorist attack. This provision
would result in the dismissal of all pending cases challenging the
program and would preclude anyone in the future from bringing an
action against the government challenging the legality of the program.
-Warrantless Surveillance Following Any Attack
The HPSCI version contains a provision that would authorize
warrantless electronic surveillance and warrantless physical searches
inside the United States for 2 months after an "armed attack against
the territory of the United States." The bill does not define "armed
attack against the territory of the United States" and it does not
indicate that the attack must be by a foreign terrorist group. Are
US embassies "territory of the United States?" Was the July 4, 2002
attack at the El Al check-in counter at Los Angeles airport, in which
a solo gunman killed three people, an armed attack against the
territory of the US? How about the attacks of the Washington DC sniper?
The HPSCI version also adds a detailed new section - "Authorization
Following a Terrorist Attack Upon the United States" - that would
allow warrantless electronic surveillance for 45 days after "a
terrorist attack against the United States" as long as the President
(1) notifies the congressional intelligence committees and (2) a FISA
judge that the US has been "the subject of a terrorist attack" and
"identifies the terrorist organizations or affiliates of terrorist
organizations believed to be responsible for the terrorist attack."
Finally, the HPSCI version contains a provision allowing the Attorney
General to authorize warrantless surveillance for renewable periods
of 90 days if the President determines and notifies the congressional
intelligence committees that there is "an imminent threat of attack
likely to cause death, serious injury, or substantial economic damage
to the United States." (Warrantless surveillance of US persons would
be limited to a period of 60 days.)
There is no definition of "imminent threat of attack" and it is not
limited to attacks in the United States. Would this include
"imminent attacks" against US soldiers in Iraq? How is "substantial
economic damage" defined? These questions are unanswered.
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(4) Make Your Voice Heard - Call Your Senators and Representatives
CDT has created an online resource where concerned citizens can find
the phone numbers of their Senators and their Representative in the
House:
http://www.cdt.org/action/nsa/
Call your elected representatives today and urge them to vote against
the Specter and Wilson bills. Urge them to support the bi-partisan
Specter-Feinstein bill in the Senate, and any bipartisan alternative
that the House leadership allows a vote on.
_______________________________________________
Detailed information about online civil liberties issues may be
found at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/17
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 12.17 Copyright 2006 Center for Democracy and Technology
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