OMB Watch etl al’s critique of Bond’s FISA "compromise

Hat tip to OMB Watch, which informed readers of its participation in a coalition of groups “committed to both civil liberties and effective intelligence-gathering,” that sent a letter June 9 to members of Congress setting out problems in the FISA Legislation proposed by Senator Bond. (R-MO), which may be Jay Rockefeller (D-WV) “solution, too. I’ll need to check. You may remember Bond from his excoriating those in the House who did not agree with him back in March, when they stuck by their guns on telecom immunity, among other provisions deleted from the Senate version of the bill.

While the threat level remains high, some in this country, and in Congress, want us to let our guard down….Letting our guard down is not a choice, it’s an invitation to disaster.

Here is a list of the other coalition members for which I’ll be adding links, as available. Below that you’ll find the critique in its entirety.

American Civil Liberties Union
American-Arab Anti-Discrimination Committee
American Library Association
Association of Research Libraries
Bill of Rights Defense Committee
Letter of June 9, 2008
Page 3
Center for American Progress Action Fund
Center for Democracy & Technology
Center for National Security Studies
Congressman Bob Barr, Liberty Strategies
Defending Dissent Foundation
Doug Bandow, Vice President for Policy, Citizen Outreach Project
DownsizeDC.org, Inc.
Electronic Frontier Foundation
Fairfax County Privacy Council
Friends Committee on National Legislation
League of Women Voters of the United States
Liberty Coalition
MAS Freedom
National Lawyers Guild – National Office
OMB Watch
Open Society Policy Center
OpenTheGovernment.org
People For the American Way
Privacy Lives
Republican Liberty Caucus
The Multiracial Activist
United Methodist Church, General Board of Church and Society
U.S. Bill of Rights Foundation

This bill unreasonably and unnecessarily authorizes broad surveillance of Americans’ international communications without meaningful Fourth Amendment protections: no individualized warrant issued by a court, no determination of probable cause of wrongdoing, and no specification of the location or means of the surveillance.

Touted as a compromise to end an impasse between House and Senate versions of FISA legislation, the bill proposed by Senator Bond is far from a compromise. Its chief provisions are not significantly different from those contained in the bill passed by the Senate in February of this year (S. 2248). Like that measure, the “compromise” would threaten Americans’ privacy by severely curtailing judicial review and failing to include other reasonable civil liberties protections that appear in the House-passed version of the legislation (H.R. 3773). Neither Sen. Bond nor the administration has made a persuasive case that these sweeping new powers are needed or that existing authorities are inadequate to ensure the effectiveness of U.S. intelligence-gathering activities.

In addition, this legislation would use the secret FISA court to rubber stamp a grant of immunity to telecommunications companies that assisted with unlawful warrantless surveillance.
The Bond proposal does incorporate a few improvements, including an audit of illegal warrantless surveillance and a provision reaffirming that FISA is the exclusive means by which foreign intelligence surveillance can lawfully be conducted in the United States. But these modest concessions do not offset the vast new unchecked surveillance powers the bill confers on the government.

Among the most important reasons to oppose this bill are the following:

The bill would authorize massive warrantless surveillance. The bill allows the government to intentionally acquire millions of Americans’ international communications with no individualized warrant or determination of probable cause, so long as one party to a phone call or e-mail is believed to be located abroad and the purpose is to gather foreign intelligence.
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The bill would require no individualized warrant even when an American’s communications clearly are of interest to the government. The bill requires an individualized warrant only if and when the government decides to “target” a particular American by using the person’s phone number or e-mail address to select his or her communications for acquisition. While the legislation provides for judicial review of targeting and other guidelines, the court procedures are inadequate to meet Fourth Amendment requirements.

The bill would curtail effective judicial review of surveillance. While the bill contains provisions for FISA court review of targeting and other guidelines, those provisions do not provide a meaningful role for the court in ensuring that the government does not seize and data-mine the private communications of law-abiding Americans. Moreover, the bill contains an exception for “exigent circumstances” that could be misused to circumvent even the limited court review provided by the bill with respect to new surveillance programs.

The bill would grant retroactive immunity for wrongdoing. The bill would give blanket immunity to companies that aided the government in conducting warrantless electronic surveillance of Americans. Like S. 2248, the bill would direct the court to dismiss privacy lawsuits against telecommunications providers if they received written assurances that the President had authorized the surveillance—assurances which in fact they received.

One change which makes the “compromise” worse than the Senate bill is a provision which would require the transfer of all of the lawsuits brought against the telecommunications providers from federal district court to the secret FISA court—a body whose only job for the past thirty years has been to approve FISA surveillance applications, not to try cases. This is not a compromise on immunity; it is the same old immunity dressed up to look like a judicial proceeding.

The bill would not provide a reasonable sunset. The bill would authorize the government to conduct this massive surveillance for six years, just like the original Senate bill.
The proposed bill would grant unnecessary and unconstitutional powers to the Executive Branch. We urge you oppose it, and to vote against any legislation that contains the defects described above.

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