Fwd: [ cacklinggrackle] Congress Poised to Consider Dangerous NSA Bills

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Sep 25, 2006 6:25 PM

[cacklinggrackle] Congress Poised to Consider Dangerous NSA Bills

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Mon, 25 Sep 2006 16:27:34 -0400

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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 dmcguire

 

Policy Post 12.17 Copyright 2006 Center for Democracy and Technology

 

 

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