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Restoring Our Liberties: New Surveillance Bill Would Begin to Restore Checks and Balances

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Rep. John Conyers, Jr., chairman of the House Judiciary Committee, and Rep. Silvestre Reyes, chairman of the House Permanent Select Committee on Intelligence, introduced legislation yesterday that would begin to restore checks and balances to the means by which the government conducts electronic surveillance of the international communications of Americans.

Those checks and balances were largely eviscerated by the so-called Protect America Act —a deeply flawed and ill-considered measure that was rushed into law as Congress adjourned last August. The new legislation by Conyers and Reyes, the

RESTORE Act, or H.R. 3773, which will be considered by both House committees today, would correct many of the most glaring deficiencies of the Protect America Act, or PAA. The RESTORE Act would give the government the powers it says it needs to intercept terrorist communications without issuing a fishing license to spy on innocent Americans.

Specifically, the bill would amend the Foreign Intelligence Surveillance Act to make clear, first, that the government is not required to obtain an order from the Foreign Intelligence Surveillance Court to intercept so-called “foreign to foreign” communications, even if they pass through the United States. And second, that the government is required to obtain an individualized order when the target of the surveillance is a person located in the United States.

The bill provides a new procedure by which the government can apply to the FISA Court for a blanket authorization to conduct surveillance of foreign targets for up to one year, provided that a significant purpose of the surveillance is to obtain foreign intelligence information related to national security and the targets of the surveillance are reasonably believed to be non-U.S. persons located outside the United States.

A blanket order cannot prevent the “incidental” acquisition of the international communications of innocent U.S. persons and cannot provide them with the same level of protection as an individualized order based on probable cause.. But the bill substantially reduces the likelihood that the government will abuse its powers—and that abuses will go undetected—by providing for extensive oversight by Congress and the courts to ensure that surveillance is conducted lawfully, responsibly, and effectively.

In contrast to the PAA, which reduced the FISA Court to little more than a cipher, the RESTORE Act assigns the court an ongoing role in ensuring that the government meets its legal obligations. Before approving an application for a blanket order, the court must make findings that

  •  The government’s proposed targeting procedures are reasonably designed to target only non-U.S. persons outside the United States.
  • The government’s proposed minimization procedures comply with FISA requirements for “minimizing” the amount of irrelevant information the government acquires, retains, and disseminates.
  • The government’s proposed guidelines are reasonably designed to ensure that it seeks a traditional court order when it wishes to conduct surveillance of a person reasonably believed to be located in the United States.

The bill substantially strengthens congressional oversight as well. It requires the Director of National Intelligence and the Attorney General to submit periodic compliance reports to the Intelligence and Judiciary Committees, including a description of any incidents of non-compliance, and to report to Congress on the instances in which the identity of a U.S. person whose communications were acquired was shared with government agencies.

The bill also requires the Inspector General of the Department of Justice to conduct periodic audits and make reports to Congress and the FISA Court regarding the government’s compliance, including, for example, the number of instances in which persons “reasonably believed” to be outside the United States actually were located inside the United States.

In addition, the bill requires the Inspector General to carry out an audit of the so-called Terrorist Surveillance Program, under which the government secretly conducted surveillance without a court order for several years following 9/11, and to report on his findings to the appropriate congressional committees.

These audit and reporting provisions are essential, not only to enable Congress to determine whether the government is complying with the law but also to enable Congress to assess whether the government has a genuine and continuing need for the enhanced surveillance authorities granted under the bill.

Congress cannot do its job without the facts. Yet the Bush administration’s repeated refusal to provide Congress with information about its past surveillance activities has made it difficult, if not impossible, for Congress to determine what the government needs to be able to do and to develop solutions that are appropriately tailored to meet that need.

It is for this reason that the bill couples expanded reporting requirements with a “sunset” provision, under which the new powers given to the government will terminate on December 31, 2009 unless renewed by Congress. Taken together, these provisions will help ensure that the next time Congress considers these matters it will not have to legislate in the dark.

Until then, the bill represents a serious and responsible effort to provide the government with the temporary authority to meet the immediate security concerns it has identified while providing Congress with the information it needs to evaluate the continuing necessity for those measures.

Now that Congress has seized the initiative, it remains to be seen whether the administration will choose to cooperate in seeking reasonable solutions or return to the demagogic attacks to which it has so often resorted in the past. But it will no longer do for the White House and the Director of National Intelligence to issue vague threats and oracular pronouncements. If they are not prepared to endorse the bill, it is time for them to explain to Congress precisely why it is deficient.

It is also time for the president to explain whether at long last he is prepared to acknowledge that FISA is the exclusive means by which electronic surveillance may be conducted for the purpose of gathering foreign intelligence information, or whether he will continue to reserve the right to circumvent the statute as he did when he secretly authorized warrantless surveillance under the Terrorist Surveillance Program. The RESTORE Act expressly reaffirms that FISA is the exclusive means by which such activities may lawfully be conducted and requires the president to seek a specific statutory exception if he wishes to be relieved of his obligation to obey the law.

The RESTORE Act does not contain a provision ardently sought by the administration that would grant retroactive amnesty to any telecommunications carrier found to have violated the law by permitting warrantless surveillance under the Terrorist Surveillance Program. Such a provision would reward those who knowingly broke the law and would undermine the critical role played by service providers in ensuring that the government presents the required documentation before being given access to intercepted communications.

Some telecom carriers have argued that the lawsuits now pending against them should be dismissed—not because they complied with the law but because the government’s assertion of the “state secrets privilege” prevents them from presenting a defense. This is a legitimate concern that Congress should address—not by immunizing wrongdoing but by modifying the privilege to enable the judge to hear the evidence in a manner consistent with national security.

The Protect America Act was enacted in haste and without adequate care. It gave a blank check to the administration while providing few safeguards against abuse. With the PAA set to expire in February 2008, Congress has the opportunity to correct that mistake.

The RESTORE Act can and should be improved upon as it proceeds through the legislative process. But it is a major step in the right direction as Congress seeks to enhance both our security and our liberty.

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