FISA Facts from the ACLU-

As the House of Representatives takes the time it needs to negotiate a bill to amend the Foreign Intelligence Surveillance Act (FISA), the White House has launched a public assault on the legislative body. The administration claims that the House has endangered the country by letting the Protect America Act (PAA) expire and should pass the bill already approved by the Senate. The Senate bill, however, is unconstitutional and contains immunity for the telecommunications companies that aided the president’s warrantless wiretapping program. The American Civil Liberties Union (ACLU) is urging the House to continue to stand strong for the Constitution.

In a February 22nd letter to the House Permanent Select Committee Chairman Silvestre Reyes, Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell made several misleading claims. A corrective statement was released by the Justice Department and Office of the Director of National Intelligence regarding the cooperation of “private partners” the following day. Here, the ACLU refutes some of the administration’s arguments.

The Administration claims that:

  • FISA's requirements, unlike those of the Protect America Act and the bipartisan Senate bill, impair our ability to collect information on foreign intelligence targets located overseas.
  • …"because of the hurdles under FISA's emergency authorization provisions and the requirement to go to the FISA Court within 72 hours, our resource constraints limit our use of emergency authorizations to certain high-priority circumstances and cannot simply be employed for every foreign intelligence target” and that "our intelligence professionals need to be able to obtain foreign intelligence from foreign targets with speed and agility."

The Facts:

  • The NSA and CIA have unfettered authority to wiretap at will outside the United States. FISA only regulates domestic spying. No matter what, in an emergency situation, the government can begin a wiretap immediately. Probable cause is a very low evidentiary threshold, so if the government does not have enough of a justification to obtain a judge’s approval (within 72 hours) there is probably not a very good reason for them to believe there’s an emergency in the first place.
  • Let’s not forget that this push to amend FISA started because the administration claimed that there was a simple “foreign to foreign” fix needed. There is substantial agreement that a FISA warrant should not be needed to intercept communications between foreigners in foreign countries. Since July, the administration and DNI have consistently asked for a mile under the guise of an inch. If the foreign to foreign fix is all that is needed, it would easily pass with overwhelming bipartisan and bicameral cooperation. The fact is the administration wants Congress to legalize the warrantless domestic wiretapping program that was disclosed over two years ago (to the outrage of many in Congress, it should be noted) and to make sure the phone companies emerge from their role in the program without a scratch.