Setting the Record Straight on FISA

In recent weeks, there has been lot of conflicting information floating around about efforts by House Democrats to protect the country by adopting rules for intelligence gathering that are both flexible and constitutional. This week, President Bush suggested that my legislative alternative to this summer's hastily-enacted Foreign Intelligence Surveillance Act (FISA) reform, the "Protect America Act," would take away important tools from our intelligence community. He characterized as "obstruction" the skepticism that many of us have about granting amnesty to telecommunications carriers who may have cooperated in warrantless surveillance. I was disappointed that the President did not propose any concrete steps to improve our capabilities or protect our freedoms -- he just repeated his demand for immunity.

This comes close on the heels of a recent controversy concerning the House Democrats' FISA legislation stemming from Joe Klein's column in Time Magazine on November 21st, in which his Republican sources seem to have spun a tale that led Mr. Klein to characterize our efforts as "more than stupid."

I believe that it is time for a comprehensive and detailed response to the President's accusations of obstruction, the misinformation in the Time Magazine column, and the debate over warrantless surveillance. Below is that response. [1] Please let me know what you think, and feel free to pass along to your friends and colleagues.

Joe Klein's recent column [2] deriding the House-passed FISA legislation, along with his subsequent stumbling [3] efforts [4] to clarify its intent, and Time Magazine's failure [5] to publish the protests my Democratic colleagues and I had regarding its many inaccuracies are only the most recent manifestation of disinformation put forth concerning the Bush Administration's warrantless surveillance program and legislative efforts to modify the law. As the lead author, along with Silvestre Reyes, of the RESTORE Act [6], allow me to set the record straight once and for all.

First, contrary to GOP and media spin, the RESTORE Act does not grant "terrorists the same rights as Americans." Section 105A of the RESTORE Act explicitly provides that foreign-to-foreign communications are totally exempt from FISA – clearly, this exception for foreigners such as members of Al Qaeda does not apply to Americans. In cases involving foreign agents where communications with Americans could be picked up, Section 105B of the legislation provides for liberalized "basket warrant" procedures by which entire terrorist organizations can be surveilled without the need to obtain individual warrants from the FISA court. Again, this new authority is aimed at foreign terrorists, not Americans.

Mr. Klein appears to base much of his criticism of our bill on our use of the term "person" to describe who may be surveilled, based on the suggestion of a Republican "source" that this risks an interpretation that terrorist groups would not be covered. The truth is that under FISA the term person has been clearly defined for almost thirty years to include "any group, entity, association, corporation, or foreign power." It is also notable that both the RESTORE Act, and the Administration's bill passed this summer, contain the exact same language that Mr. Klein questions, yet we've never heard an objection to the Administration's bill on this score.

Second, I must strongly disagree with Mr. Klein's assertion that the Speaker "quashed ... a bipartisan [compromise] effort." As the Chairman of the Committee with principal jurisdiction over FISA, the House Judiciary Committee, I am aware of no effort to prevent bipartisan compromise on this issue. As a matter of fact, last summer, beginning in July, Democrats tirelessly negotiated with Director of National Intelligence (DNI), Mike McConnell, to develop consensus legislation to address the Administration's stated concerns about our intelligence capability.

We addressed every one of the concerns Mr. McConnell raised [7]. He said he needed to clarify that a court order was not required for foreign-to-foreign communications -- our bill did just that. McConnell said he needed an assurance that telecommunications companies would be compelled to assist in gathering of national security information – our bill did that. The DNI said he needed provisions to extend FISA to foreign intelligence in addition to terrorism – the bill did that. He asked us to eliminate the requirement that the FISA Court adjudicate how recurring communications to the United States from foreign targets would be handled – the bill did that. McConnell insisted that basket warrants be structured to allow additional targets to be added after the warrant was initially approved – again, the bill did that. When this legislation was described to DNI McConnell, he acknowledged that "it significantly enhances America's security.''

Yet, suddenly, on the eve of the vote, Director McConnell withdrew his support after consultation with the White House. If the media wanted to identify over-the-top partisanship, they could begin by citing the declaration of David Addington, Vice President Cheney's Chief of Staff, that "We're one bomb away from getting rid of that obnoxious FISA Court," and DNI McConnell's assertion that by merely having an open debate on surveillance, "some Americans are going to die."

Third, the RESTORE Act legislation is badly needed to provide accountability to the Bush Administration's unilateral approach to surveillance. The warrantless surveillance program has been riddled with deceptions that only began to come to light when The New York Times first disclosed the existence of the program in 2005. The program itself appears to directly violate FISA and the Fourth Amendment, as a federal court [8], the non-partisan Congressional Research Service [9], numerous Republican legislators [10], and independent legal scholars [11] have found.

The Administration has also mischaracterized the existence, degree, extent and nature of the program itself as well as how much information it has shared with Congress. For instance, compare the President's speech in 2004 [12] with his admission that there was indeed a program of warrantless surveillance [13]. When high-ranking DOJ officials found the program lacking, the White House went to absurd, if not comical lengths, to convince a dangerously ill and hospitalized Attorney General Ashcroft to overrule them [14]. Even today, the Administration continues to obscure its own past misconduct with extravagant claims that the "state secrets" doctrine bars any legal challenges whatsoever - a position that has been rejected by the Court of Appeals [15].

The Administration's hastily enacted legislation, signed this summer, is little better. Instead of being limited to the stated problem of foreign-to-foreign electronic surveillance, it could apply to domestic business records, library files, personal mail, and even searches of our homes [16].

Against that backdrop, it is clear we need a new law with the critical oversight provisions included in the RESTORE Act, such as requiring the Administration to turn over relevant documents to Congress, mandating periodic Inspector General reports, and acknowledging that the Administration is indeed bound by FISA.

Finally, the Administration has yet to explain why offering retroactive immunity to telephone giants who may have participated in an unlawful program is vital to our national security. Under current law, the phone companies can easily avoid liability if they can establish they received either an appropriate court order or legal certification from the Attorney General. Asking Congress to grant legal immunity at a time when the Administration has refused to provide the House of Representatives with relevant legal documents for more than eleven months is not only unreasonable, it is irresponsible.

Civil liberties and national security need not be contradictory policies, rather they are inexorably linked. Perhaps nowhere is this interrelationship more true than in intelligence gathering, where information must be reliable and untainted by abuse to be useful. So when we discuss FISA, the first thing we need to do is drop the partisan rhetoric, and stick to the actual record. Under the RESTORE Act, the intelligence community has the flexibility to intercept communications by foreign terrorists without obtaining individual warrants, and the Court and Congress are given the authority to perform their constitutional oversight roles. The only parties who lose in this process are the terrorists, and those who want the executive branch to have absolute and unreviewable power.

Rather than being, in Mr. Klein's words, "well beyond stupid," the RESTORE Act offers a smart and well balanced approach to updating FISA and reining in the excesses of an unchecked executive branch.