Late last night, in the final hours before the pre-election adjournment, the House of Representatives approved H.R. 5835, the “Electronic Surveillance Modernization Act,” supposedly designed to “modernize” the Foreign Intelligence Surveillance Act. So much for truth in labeling.
The real purpose of this bill is not to modernize FISA, but to eviscerate it. FISA was enacted 30 years ago to ensure that the government can conduct necessary surveillance of spies and terrorists while protecting the Fourth Amendment right of ordinary Americans to be free from unreasonable searches and seizures.
The statute requires the government to obtain a warrant from a special court when there is a substantial likelihood that the surveillance will acquire the communications of a U.S. citizen or lawful permanent resident, and to show probable cause that the target of the surveillance is a terrorist or spy. The statute also provides a number of exceptions which permit the government to conduct surveillance without a warrant in emergency circumstances and to inform the court after the fact.
Over the past several decades, the government has submitted many thousands of requests to the FISA court, virtually all of which have been expeditiously approved. From time to time, Congress has updated and yes, modernized the law—it has done so five times since 9/11 alone—to ensure it is still serving the purposes for which it was enacted.
In December 2005, Congress and the American people learned through press reports that the president had authorized the National Security Agency to circumvent the law by undertaking a sweeping program of secret surveillance that captured the private communications of many thousands of Americans with no judicial oversight. The program was a clear violation of both FISA and the National Security Act, which requires notification to the full House and Senate intelligence committees.
The president claimed that he had authorized the program because the FISA procedures were too slow and cumbersome to enable the government to carry out effective surveillance of terrorist operatives. That claim has never been substantiated. In fact, it has been flatly contradicted by former senior intelligence officials and counterterrorism experts who insist that the government has all the authority it needs to ensure that “when al Qaeda calls, we’re listening.”
The administration has also claimed that FISA is defective because it requires a warrant to intercept foreign-to-foreign communications that are routed through the United States—an assertion that cannot be squared with the plain language of the statute limiting the warrant requirements to interception of communications of U.S. persons within the United States.
Since the NSA program came to light, members of the House and Senate have advanced a series of proposals that would bring the program into line with the law. The more responsible of these bills would retain the essential structure of the FISA system, reaffirming its core requirement of a warrant based on individualized suspicion while making it easier for the government either to obtain a warrant or to act without a warrant on an emergency basis.
The more reckless proposals would legalize the NSA program by any means necessary, dismantling the warrant requirement, and eliminating any meaningful checks on the executive branch. Sadly, the House of Representatives has opted for the latter approach.
The final bill not only ratifies the NSA program but authorizes its expansion. It makes a series of amendments to FISA that would allow the government to circumvent judicial and congressional oversight and immunizes those who have violated the law from liability. Among other things, the bill would:
Redefine “electronic surveillance” to permit the government to intercept without a warrant not only international calls and emails to or from spies and terrorists, but every call or email entering or leaving the United States— even where there is a substantial likelihood that the surveillance will acquire the communications of U.S. persons—provided that the surveillance is not “directed at” a particular known individual in the United States.
- Permit the government to retain and use communications of U.S. persons acquired in the course of warrantless surveillance, repealing the current “minimization” requirement that such communications be destroyed unless a court order is obtained or certain exigent circumstances are shown to exist.
- Provide immunity from liability to communications service providers who gave the government access to private communications from 9/11 until 60 days after the enactment of the bill. This provision could result in the dismissal of lawsuits filed against service providers who cooperated in the NSA program.
- Expand profoundly the current emergency provisions of FISA by permitting warrantless surveillance for a 90-day period following a terrorist attack or if the president determines that there is an “imminent threat of attack likely to cause death, serious injury, or substantial economic damage,” and permitting the president to grant himself extensions of the 90-day authorization indefinitely and in secret.
- Amend the National Security Act of 1947 to eliminate the requirement that the president keep the members of the House and Senate intelligence committees “fully and currently informed” of intelligence activities.
Taken together, these changes would allow the government to vacuum up, retain, and use vast quantities of information coming from millions of innocent Americans, free of judicial or congressional oversight. Yet, as former senior national security officials have stated, this massive violation of the Fourth Amendment will do nothing to strengthen our nation’s response to the threat of terrorism.
Instead, it will compromise the intelligence mission by inundating intelligence professionals with mountains of information they cannot assimilate and undermining the legal clarity they need to operate effectively. It is fortunate that House and Senate negotiators have not been able to resolve their differences in time for both houses to act on this ill-considered legislation before they adjourn.
One must hope that when the Senate returns, it takes a long and careful look before it leaps.
See the letter sent to members of Congress by the Center for American Progress Action Fund and five other organizations opposing H.R. 5825.
See the statement of former national security officials.