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FISA, the Next Round

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Confusion abounds about the actual workings of FISA, the stop-gap measure passed recently and the longer term measures now put forward by the Administration and various Democratic sponsors. A large part of the confusion is traceable to the Administration’s persistent refusal to explain exactly what its program does and how it does it. That, we’re told, is top secret. Instead, Administration spokesmen led by Michael McConnell, have taken to aggressive fear-mongering which has generally been so counter-factual that McConnell has now been called twice on false statements to Congress.

Democrats in Congress appear to have been inspired by their own base to peel back a good deal of the concessions made in the “Protect America Act.” The essence of that legislation lay in the words “trust us.” It authorized the Attorney General and the Director of National Intelligence to intercept, without an authorizing FISA Court order, any communications “concerning” persons “reasonably believed” to be outside the United States, as long as the objective of the exercise was to secure “foreign intelligence information.” Critics have been quick to say that the Administration’s continuous characterization of this as granting the right to spy on conversations of persons outside the United States is incorrect. Critics are right. Clearly it authorized intercepts of conversations involving American citizens and residents. This measure was rushed through and there has been a consensus among Democrats and libertarian Republicans that it went too far and needed to be reordered.

Two competing measures have been put forward, one is the Democratic leadership’s RESTORE Act and the other is Rush Holt’s Modernization Act. Both seem to make significant progress over the ill-considered concessions made in the Protect America Act.

Holt’s measure is far more sweeping. It makes clear that FISA simply does not apply to “foreign to foreign” communications even if they are routed through the United States—as many are. It continues the requirement of an individual warrant with respect to the international communications of individual U.S. citizens. (The Administration has consistently sought blanket authority for such surveillance, but has declined ever to make a specific case for why it needs it.)

The RESTORE Act takes a more cautious approach. It changes the scope of persons covered to be “persons that are reasonably believed to be located outside the United States and not United States persons.” So the protections to Americans would continue even when they are overseas.

The RESTORE Act also gives the FISA Court back its focal role in reviewing applications to conduct electronic surveillance for purposes of gathering foreign intelligence, by renewing the requirement of advance court review and approval. Finally the leadership’s measure requires intensive on-going oversight of the Administration’s use of programmatic authorizations, by requiring that copies of applications go to Congress, calling for regular audits by the Inspector General of the Justice Department, and requiring the Attorney General and Director of National Intelligence to report to Congress on their use of the powers granted them.

The New York City Bar Association, home to the nation’s leading corporate and telecommunications law experts, has gone over the proposals with some care and issued a letter to the House leadership with its opinions yesterday. The lawyers take two strong positions above everything else. First they insist that the Protect America Act should expire. They firmly oppose its renewal and they outline how they feel this act undermined the core protections of FISA.

And second, perhaps surprisingly for a collection of corporate lawyers, they are steadfast in opposing a grant of immunity to the telecommunications companies. “There is simply no lawful basis for the Administration’s demand for such absolute immunity. It would encourage a culture of impunity for unlawful conduct that is entirely unacceptable,” wrote Association President Barry Kamins.

Indeed, yesterday, ranking Republican Arlen Specter also announced his view that retroactive immunity for the telecom providers was a non-starter.

In the meantime, judges seem increasingly unwilling to accept the Administration’s claims that state secrets concerns should block all user and shareholder suits against the telecoms for their alleged provision of confidential information in violation of criminal statutes. All of which makes Joseph P. Nacchio of Qwest look very reasonable, and will mean that other telecom CEOs may have some serious explaining to do to their shareholders.

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