Congress, President Debate Reforms to Electronic Surveillance Act

While members of the US House Intelligence Committee debated the language of a bill introduced yesterday to revise the Foreign Intelligence Surveillance Act so that it applies, as its title implies, to foreigners, President Bush called on Congress to extend the intelligence gathering provisions of another law due to expire in February. This extension would close what the administration perceives as a surveillance gap opened when a federal judge declared key FISA provisions unconstitutional, especially as it pertains to federal investigations of American citizens.

"The problem is the threat to America is not going to expire in February," the President stated this morning from the White House rose garden. "So Congress must make a choice: Will they keep the intelligence gap closed by making this law permanent? Or will they limit our ability to collect this intelligence and keep us safe, staying a step ahead of the terrorists who want to attack us?"

The bill currently under discussion by House Intelligence uses yet another struggling acronym: the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective (RESTORE) Act of 2007. It sounds like an active verb that might meet with the President's approval.

But as its initial text read when the bill headed to a markup session this morning, while the bill would enable intelligence services to acquire the contents of communications between non-citizens -- or what the bill calls "not United States persons" -- without a court order, it does require the Justice Dept. or the Intelligence service to apply for an order to use that acquired information for other intelligence gathering purposes for up to a year.

It also includes a directive authorizing the Inspector General - the person whose own investigation triggered the re-examination of FISA back in March - to take six months to conduct a complete review of how federal agencies may have used, or misused, personal customer data turned over to them by US telecommunications carriers, and perhaps others.

"Not later than 180 days after the date of the enactment of this Act," the first draft of the RESTORE bill reads, "the Inspector General of the Department of Justice shall complete an audit of all programs of the Federal Government involving the acquisition of communications conducted without a court order on or after September 11, 2001, including the Terrorist Surveillance Program referred to by the President in a radio address on December 17, 2005. Such audit shall include acquiring all documents relevant to such programs, including memoranda concerning the legal authority of a program, authorizations of a program, certifications to telecommunications carriers, and court orders."

It was in that radio address to which the bill's language refers that Mr. Bush first publicly admitted to having utilized Patriot Act provisions to authorize federal wiretaps.

"In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations," Mr. Bush said in that December 2005 address. "Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks."

Judge Aiken ruled certain FISA provisions unconstitutional in a decision for a case dealing with a US citizen and former FBI employee of Muslim faith was detained after the fingerprints from his personnel records appeared to match those of a suspect in a case being investigated by Interpol.

In her ruling, the judge wrote, "FISA now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment...As plaintiffs allege, when proceeding pursuant to FISA, 'there is no [need for] showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes.'

"Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded," her ruling continued. "These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment."

Apparently addressing Judge Aiken's concerns, the RESTORE bill would have the Director of National Intelligence and the Attorney General maintain a database of breaches of citizens' Fourth Amendment rights with regard to intelligence gathering, and provide Congress with an annual report of the contents of that database.

But as President Bush made clear from the rose garden this morning, the administration fears citizens could then use that information to sue the carriers or other services responsible for turning over their private information. Mr. Bush refuses to sign any bill, he said, which fails to contain provisions holding those carriers harmless against private lawsuits.

In the President's words: "The final bill must meet certain criteria: It must give our intelligence professionals the tools and flexibility they need to protect our country. It must keep the intelligence gap firmly closed, and ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And it must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.

"When Congress presents me with a bill," the President continued, "I will ask the Director of National Intelligence whether it meets these criteria. And if it does, I will sign it into law."