ACLU Letter to Gonzales on FISA

By Big Tent Democrat, Section Legislation
Posted on Mon Aug 13, 2007 at 03:55:26 PM EST
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After an unproductive meeting with Justice officials, the ACLU writes a letter to Attorney General Gonzales:

Dear Mr. Attorney General:

Today, my staff was briefed by the Justice Department regarding guidelines to institute the new foreign to domestic wiretapping authority Congress granted to you this month by The Protect America Act.

Regrettably, my colleagues reported that they learned virtually nothing new about how you intend to use the broad new authority to intercept emails and phone calls when one party is in the U.S., or how those U.S. people will be protected from unwarranted government intrusion. With so much at stake, the public needs to have a fuller understanding of what its Justice Department will be doing with its most private communications.

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In particular, the Act confers on you the authority to issue year long orders for entire spying programs that identify neither the people nor the facilities that will be tapped. The only requirement is that the communications be of an international character - that at least one leg of the email or call is overseas. By definition, this new program will sweep in all those calls where the other leg is in the U.S., and will do so without court or congressional review. While we have long supported legislation that would allow our government to intercept foreign to foreign calls, this new, warrantless interception of Americans' international communications is far more than what the Administration asked for and what we believe the Constitution allows.

Further, the legislation was silent on how to treat these communications to which someone in the U.S. is a party. We are gravely concerned that Congress chose not to include mandatory protections for American communications, and instead left all such decisions to the Justice Department without further guidance.

Because you are solely responsible for determining how U.S. persons will be protected in this new program, we respectfully request a meeting with you to discuss in more depth how the Justice Department will be using its new authority. In particular, we would like to discuss:

Whether your new authority will be used to collect all international communications coming into and out of the United States,

Whether you plan to return to the Foreign Intelligence Surveillance Court when you discover that a certain line or person has significant contact with the United States, and

How information gathered on people in the United States will be used and what civil liberties safeguards will be put in place for instances in which information is collected on individuals who have no intelligence value to the government.

Congress left all of these questions to your discretion and we eagerly look forward to discussing with you how the Justice Department intends to deal with the serious civil liberties issues implicated by this new law.

Sincerely,
Anthony D. Romero, Executive Director
American Civil Liberties Union

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ACLU Letter to Gonzales on FISA | 10 comments (10 topical)

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Anonymous Liberal (5.00 / 2) (#1)
by Alien Abductee on Mon Aug 13, 2007 at 04:23:54 PM EST

has been writing about how the Protect America Act interacts with other laws and other aspects of FISA - here and here - and says Congress doesn't realize the half of what it's done with this legislation.

But what 105B does do is provide the government with the authority to collect, without warrants, just about any non-content information, so long as it "concerns" people believed to be located outside of the country.
That's significant because FISA is not the only law that requires the government to seek warrants. There are a number of other laws (such as the Communications Act, the Stored Communications Act, and the Pen Register Statute) that either require the government to get a warrant before collecting information or bar the custodians of that information from turning it over absent a court order.
But 105B's provisions apply "notwithstanding any other law," meaning that once invoked, this authority trumps all other statutes. As Marty observes, "perhaps the evisceration of FISA is the least of it."

and yet BTD (none / 0) (#2)
by Sumner on Mon Aug 13, 2007 at 04:41:54 PM EST

was able to predict the house votes on the bill, almost axactly


More puzzling (none / 0) (#3)
by Alien Abductee on Mon Aug 13, 2007 at 04:57:55 PM EST

is why it even had to come to that. Balkin:

Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.

From NYT, August 11, 2007: (none / 0) (#4)
by oculus on Mon Aug 13, 2007 at 05:56:58 PM EST

By Aug. 2, the two sides seemed relatively close to a deal. Mr. McConnell had agreed to some increased role for the secret court, a step that the administration considered a major concession, the White House and Congressional leaders said.
But that night, the talks broke down. With time running out, the Senate approved a Republican bill that omitted the stronger court oversight. The next day, the House passed the bill.

[Emphasis added.]


: His point (none / 0) (#8)
by Alien Abductee on Mon Aug 13, 2007 at 07:32:46 PM EST

I think was that Democrats had already given Bush what he asked for in the Dem bill, so there was no reason for them to cave on threats of a veto, since what they provided met Bush's own publicly stated requirements. If Bush had then gone and actually vetoed, they would have the political buffer of being able to say We gave him what he asked for and he vetoed! WTF!

Perhaps this will help (none / 0) (#5)
by jimakaPPJ on Mon Aug 13, 2007 at 06:16:20 PM EST

answer the ACLU's questions.

I feel ever so much better now. (none / 0) (#6)
by oculus on Mon Aug 13, 2007 at 06:22:25 PM EST

Gee, what a surprise (none / 0) (#7)
by Sailor on Mon Aug 13, 2007 at 07:05:34 PM EST

This commenter never has any facts to link to, just wrongwing blogs.

powerlie, volkh, rethug duncan harris (ya know, the idiot who thinks he found iraq's WMDs) ... the truth is out there ... and it's only a google away.


Speaking of links and facts (none / 0) (#10)
by jimakaPPJ on Mon Aug 13, 2007 at 11:23:42 PM EST

Well, it is true that I have never linked to MoveOn or KOS...

Something I am very proud of....


: Do you have a point? (none / 0) (#11)
by Sailor on Tue Aug 14, 2007 at 08:55:07 AM EST

I never linked to those blogs either, I link to news articles, so it's hard to understand your point except as try to distract from the fact that you can never link to facts.