Today's FISA Amendment News

Scarecrow at Firedoglake and Marcy at The Next Hurrah are covering today's New York Times article suggesting that the FISA Amendment grants far more power than previously thought to intercept phone calls and obtain call and e-mail records of ordinary Americans not suspected of being involved in terrorism.

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

I'd like to focus on one other aspect: deficiencies in reporting requirements. How will the American whose conversations, business records, call records or e-mails are intercepted by virtue of the FISA Amendment find out and how will they be able to challenge it? The answer, as far as I can tell, is they won't know about it and they won't be able to make a legal challenge. The ACLU describes the paltry reporting requirements here.


In criminal cases, wiretaps are conducted according to Title III, the wiretap statute. After charges are filed, the defendant gets copies of all the applications, affidavits and orders for the wiretap. They get copies of all intercepted conversations and seized records. They can move to suppress the seized conversations and records on a number of grounds. They can argue there wasn't probable cause for the interceptions or the Government didn't exhaust other, less intrusive investigative techniques before resorting to wiretaps. They can argue the Government didn't properly minimize innocent calls or didn't follow the court's orders on how to conduct the wiretap. While notice may be delayed, it can't be eliminated altogether.

With wiretaps and other electronic surveillance conducted for intelligence rather than law enforcement purposes, including those under FISA, the only reporting requirements are to how many applications were made and granted. (Similarly, under the Patriot Act, providers of records are gagged from informing those whose records were turned over. With Sneak and Peek searches, no notification is left at the time of the search.)

The Government, in amending FISA, like it did with the Patriot Act, is trying to make an end run around the 4th Amendment and its requirement of probable cause. This is particularly dangerous now that "the wall" has come down and intelligence agencies are allowed to share information with law enforcement agencies.

In our coverage of the FISA Amendment, let's not forget we also need the SAFE Act as well as some way for Americans whose calls are intercepted and whose records are seized, even if it's just for intelligence purposes, to go into court and challenge it after the fact. To do that, they need to know about it in the first instance.

A good start would be for Congress to pass a bill introduced back in 2003: The Foreign Intelligence Surveillance Reporting Act of 2003. As the ACLU wrote to the bill's sponsors at the time:

The Foreign Intelligence Surveillance Act (FISA) authorizes secret wiretaps and secret searches of the homes and offices of Americans and other forms of data gathering for national security reasons. While the initial enactment of FISA was an appropriate accommodation of national security interests and individual rights to privacy and due process, since its initial enactment FISA has been expanded in ways that pose an increased threat to individual rights. Moreover, FISA surveillance authorities are now being used more and more; indeed, it appears that the federal government carries out more electronic surveillance under the authority of FISA than under criminal rules.

Given the absolute secrecy of FISA searches and seizures, mechanisms for public accountability are crucial to protect rights of privacy - as well as to insure effective and efficient use of this extraordinary authority. Your bill to require public accounting of the number of US persons subjected to surveillance under FISA, the number of times FISA information is used for law enforcement purposes, and to require disclosure of other information would be an important step in providing for oversight and public scrutiny of these extraordinary powers.

FISA judges rubber stamp secret FISA applications for eavesdropping so long as the application is filled out correctly. They don't weigh the merits of the request. There is no disclosure of whether the warrants produce useful information so Congress can make sure the power isn't being misused by the Executive Branch. All that has to be disclosed is the total number of applications made and how many were granted or refused.

The FISA Amendment excludes even more surveillance from the existing and paltry FISA reporting requirements. If Congress is going to fix FISA, it should increase the reporting requirements and loosen the gag restrictions and in both FISA and non-FISA intelligence surveillance cases, allow those who have been spied on to know about it at some point so they can challenge it and seek appropriate relief in a court of law.

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    The damage this does is incalculable (5.00 / 1) (#2)
    by Ellie on Sun Aug 19, 2007 at 05:56:54 PM EST
    As a human rights geek, I'm disheartened primarily to see this appalling administration so thoughtlessly trash the Constitution, and with so little protest from an enfeebled opposition distracted by campaign vanity, paralyzed by idiocy and (inexcusably) in a rush to get away for the freakin weekend.

    But in addition, as someone who frequently has to cross international borders electronically to earn my living, I simply won't conduct business from within the US without solid guarantees that my privacy won't be violated, materials and addresses won't be harvested, media files won't be peeped or poked --

    I'm disgusted at how little consideration this got. The list of concerns (and steps I`d need to take just in the routine course of exchange) is ridiculously long.

    I know the world`s supposed to adjust to whatever the First Primate's Scented Sparkly Executive Crayon sets down on whim, but this physical world we inhabit has borders, duties, legal issues and most importantly, firm guarantees between nations involving treaties and transactions that can't be scribbled aside. This is just outrageous.

    I wouldn`t send sensitive material electronically anyway, and since the egregious habits of the Bush era, especially not to/from a US location.

    I'm such a small potato I'm barely even a tater tot, but the potential business blowback from this is tremendous.

    C-Span (none / 0) (#1)
    by tnthorpe on Sun Aug 19, 2007 at 01:40:36 PM EST
    C-Span has video coverage of two trials where some of the issues noted in the article above are at stake. Use the "America and the Courts" link and see the 9th Circuit's hearing of the Hepting vs. ATT and Al-Haramain Islamic Foundation vs. Bush cases. I found watching them very helpful in trying to put the issues around FISA in context. The wrangling about the inadvertent exposure of evidence of warrantless surveillance in Al-Haramain v Bush goes right to the heart of the extraordinary Constitutional claims made by the Bush Administration when it asserts authority to ignore FISA and the 4th Amendment based on the president's standing as commander in chief. The 9th Circuit judges are a shrewd panel and their questions sharp. http://www.c-span.org/homepage