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The FISA Debate: It's Not Just About Immunity

January 18, 2008 - by Donny Shaw

When the Senate comes back from vacation on Tuesday, one of the first things they’ll do is try to revamp the current FISA policies the administration must follow when spying on suspected terrorists. To do so, Senate Majority Leader Harry Reid (D-NV) has chosen to bring a version of the bill to the floor that came through the Senate Intelligence Committee and includes a provision that gives legal immunity to the telecommunications companies that cooperated with President Bush’s warrantless and illegal wiretapping program.

But the same bill was also passed by the Senate Judiciary Committee, and some Democrats want that version of the bill brought to the floor instead. The Judiciary Committee version has become most well known as the FISA bill without a telecom immunity provision. But, on his DailyKos diary, Russ Feingold (D-WI) — pictured — explains that there are other substantial differences between how the two versions of the bill deal with judicial oversight of the government’s wiretapping activities:

  • The PAA and the Intelligence Committee bill allow the government to acquire communications between foreigners and Americans inside the United States, without a court order and regardless of whether anyone involved in the communication is under any suspicion of wrongdoing. There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition. No court reviews these targets individually; only the executive branch decides who fits these criteria. The result is that many law-abiding Americans in the U.S. who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement. Even the Administration’s illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular suspected terrorists. Not even the Judiciary bill adequately addresses this very serious problem.
  • The role of the FISA court is also at issue. The Intelligence Committee bill doesn’t give adequate authority to the FISA court to do what it is supposed to do – operate as an independent check on the executive branch. The bill passed by the Senate Judiciary Committee does give the court authority to assess the government’s compliance with its wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and to enforce its own orders – all of which are critical checks and balances.
  • The Judiciary Committee bill also does a much better job than the Intelligence Committee bill or the Protect America Act of protecting Americans from widespread warrantless wiretapping. It ensures that if the government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating – what is called reverse targeting – it has to get a court order on that American. The Judiciary bill also prohibits bulk collection – that is, the sweeping up of all communications between the United States and overseas, which is something the Director of National Intelligence has admitted is legal under the Protect America Act.
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