Genesee Valley Chapter — What’s To Be Done About FAA And FISA

What’s To Be Done About FAA And FISA

By Jane Yoon A version of this article appeared in the ‘Daily Record’ on July 22, 2009. We now know that right after 9/11 President Bush authorized the NSA to conduct blanket surveillance on electronic communications without a warrant. The Federal Intelligence Security Act of 1978 (FISA) created a procedure whereby he could have obtained a warrant from a special court but he chose not to. When The New York Times exposed the program in late 2005, the President did suspend its operations but he did not abandon the idea of the program. Nor did he conform the operations of the program to the law. Instead, he asked Congress to change the law, to legalize what he had been doing. Some members of Congress justifiably balked. However, a majority of members, Democrats and Republicans, went along and last summer adopted the FISA Amendments Act of 2008 (FAA). Little complimentary can be said about the FAA. Generally, it broadens the authority previously granted the President by FISA to monitor electronic communications, domestic and international, at the expense of constitutional safeguards. In particular, the President may make an application to the special court (i) without identifying the people to be watched, (ii) without specifying the facilities, places, premises or property to be monitored, (iii) without adhering to any restriction or oversight on the retention, analysis, and dissemination of the information acquired, (iv) without probable cause, and (v) without prior administrative determinations that the targets are connected in any way to terrorism. Perhaps more disturbing, if the special court denies an application for surveillance, the government is permitted to continue the invasive activity pending appeal or further court action — essentially nullifying the decisions of the special court. Finally, the FAA immunizes any telecommunication corporation involved in the surveillance from prosecution. A group of attorneys and human rights, labor, legal, and media organizations has challenged the constitutionality of FAA. They claim that the law unreasonably curtails their professional endeavors which include confidential electronic communications with clients, colleagues, witnesses, and sources that reside abroad. The broad definitions set forth in the FAA subject their communications to probable government scrutiny since the work of these individuals and organizations inherently relate to “foreign intelligence information.” The ACLU is representing the plaintiffs. The complaint drafted by it alleges that the FAA violates the First and Fourth Amendments as well as the principle of separation of powers, giving the executive branch overbroad authority in conducting electronic surveillance. The ACLU seeks a declaration that the statute is unconstitutional as well as a permanent injunction against any activity allowed by the law. Amnesty et. al v. McConnell (Case No. 08cv06259, S.D.N.Y.). Coincidentally, two weeks ago — a year to the date after the enactment of the law and the filing of the suit — the government released a report questioning the effectiveness of the warrantless wiretapping program. The report was prepared by the Inspectors General of the Departments of Defense and Justice, the Central Intelligence and National Security Agencies, and the Office of the Director of National Intelligence and can be found online at http://bit.ly/2t8fy. The report found that the extreme secrecy surrounding the program itself undermined any benefits it could have yielded. Even within the Bush administration, only a select few were aware of the program’s existence. Given the limited access to the program, the few “legitimate” leads were not followed up on and most of the information obtained was “vague or without context.” As important the report buttresses the plaintiffs’ contentions that under the FAA there is little to no congressional oversight of the executive branch’s actions. As a result, the White House has bullied the special court into granting its applications and pressured the CIA to alter the “threat assessments” relied upon to authorize the surveillance program. Last month Senator Russ Feingold wrote President Obama, beseeching him to “renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping,” as candidate Obama had promised. Given the report from the Inspector Generals, it will be interesting to see how the federal courts and the President respond.