Ensuring that FISA is Legal and Effective

The incoming Congress must work to ensure that the federal government is not violating Americans’ rights with warrantless wiretapping.

The Justice Department’s Inspector General announced this week that he will conduct an internal investigation into how the Department used information obtained by the National Security Agency under a warrantless surveillance program authorized by the president shortly after 9/11. Most legal experts consider the program to be in violation of the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a warrant from a special court under most circumstances.

The investigation will examine the Justice Department’s compliance with legal requirements governing the program but will not examine the legality of the program itself. This is a subject which the incoming Congress is likely to investigate when the House and Senate change hands in January.

The 110th Congress should conduct a thorough investigation into the NSA program and should pass legislation that directs the president to:

  • Ensure that all electronic surveillance of persons in the United States is conducted in accordance with FISA or the criminal wiretap statute (title III).
  • Report to Congress if he determines that the procedures for applying for an order for electronic surveillance under FISA are no longer adequate for the timely and efficient electronic surveillance of appropriate targets.
  • Make recommendations as to whether any new resources are needed to facilitate the “near real-time approval” of emergency warrant applications to the Foreign Intelligence Surveillance Court or to streamline their processing and review.
  • Approve additional appropriations to the National Security Agency and the Department of Justice to ensure the timely and efficient processing of such emergency applications.

These measures are currently included in legislation known as the LISTEN Act (H.R. 5371).

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