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Unwarranted: New Domestic Spying Legislation Fails to Restore Judicial Safeguards

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And so it finally comes to this. After so many months of complex, contentious negotiations, the House and Senate are poised to pass a foreign intelligence surveillance bill that can only be described as a major disappointment.

The measure, H.R. 6304, the FISA Amendments Act of 2008, condones the actions of telecommunications companies that cooperated with illegal warrantless surveillance after 9/11 by virtually assuring the dismissal of the dozens of lawsuits pending against them. And it invites future abuses by failing to give the Foreign Intelligence Surveillance Court the authority to protect law-abiding Americans from being spied on by their government.

The bill is not without its positive features, including prior court review (except in “exigent circumstances”) of the government’s procedures for selecting surveillance targets and minimizing the acquisition of private information about Americans, a prohibition on “reverse targeting” of Americans, and a new requirement of probable cause for surveillance of Americans abroad. The bill includes an important provision intended to prevent future presidents from conducting unauthorized surveillance by reaffirming that FISA is the exclusive means by which foreign intelligence surveillance may be conducted in the United States. In addition, it has a “sunset” provision under which the bill will expire in 2012 unless renewed by Congress.

The bill also includes provisions to strengthen accountability. These provisions include enhanced reporting requirements, ongoing review of agency compliance by independent inspectors general, and an inspector general investigation of the illegal use of warrantless surveillance after 9/11.

That these safeguards are included in the bill is a testament to those progressive senators and representatives who refused to yield to the demagogic appeals of the Bush administration and its conservative apologists in Congress. Thanks to the efforts of these legislators, the bill is a substantial improvement over the so-called Protect America Act, which it replaces, and also substantially better than the bill passed by the Senate last February, which contained far fewer protections against government abuse.

Nevertheless, despite these welcome improvements, the bill fails at the most fundamental level to restore the independent judicial check on executive power that the Bush administration has done so much to undermine. Now, instead of determining whether probable cause exists for the issuance of a surveillance order, the FISA Court will be reduced to reviewing the adequacy of the surveillance procedures established by the Bush administration. Instead of evaluating the sufficiency of the assurances that were given to telecommunications companies to obtain their cooperation, the federal district courts in which the lawsuits against the companies have been filed will be authorized to do little more than determine whether such assurances were in fact provided.

All of this appears to have come about because House Democratic leaders were under intense pressure from within their own ranks to reach an accommodation with the Senate before wiretaps authorized under the Protect America Act expire in August. Yet it would have been far better to deal with the imminent expiration of these authorizations by renewing them until after the general election—so that a new Congress and the next administration could give this matter the careful consideration it requires.

Having failed to do that, House and Senate leaders should pledge to revisit the legislation in December 2009—when related portions of the PATRIOT Act are due to expire—rather than waiting until the new legislation sunsets in 2012. Congressional leaders also should commit to vigorous oversight by the next Congress to ensure that the powers they are granting to the executive branch are not being abused.

Mark Agrast is a Senior Fellow at the Center for American Progress, where he focuses on the Constitution, separation of powers, terrorism and civil liberties, and the rule of law.

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