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FISA Fight: The Congressional Battle Over Warrantless Surveillance

JURIST Guest Columnist Christina Wells of the University of Missouri School of Law says that while the House version of a bill amending the Foreign Intelligence Surveillance Act forces the Bush administration to actually prove that disclosing surveillance information would endanger national security, the Senate version of the legislation insulates the administration from having to account for itself at all....

The Bush Administration's warrantless surveillance program has stymied Congress since its revelation in 2005. Should Congress legitimize the program through legislation, essentially gutting existing restrictions on domestic surveillance and concentrating power in the executive branch, or should it provide meaningful oversight of a potentially far-reaching and otherwise illegal operation? The approach chosen has far-reaching ramifications for executive surveillance initiatives yet Congress is at an impasse, with both houses enacting vastly differing legislation.

The current battle arises out of the "Terrorist Surveillance Program" (TSP) authorized by President Bush soon after September 11, 2001. Although most of the program's details are unknown, the administration has described it as involving warrantless NSA surveillance of information related to electronic communications where the government reasonably believed a party was associated with Al Qaeda and another party to the communication was outside the United States. The Bush administration has acknowledged that the program intercepted electronic information from people in the United States who were not involved with terrorism.

Because the TSP involved warrantless domestic surveillance, it was illegal. The Foreign Intelligence Surveillance Act (FISA), arguably the exclusive mechanism for conducting such surveillance, requires a warrant from a special intelligence court to engage in domestic surveillance for foreign intelligence purposes. To obtain that warrant, government officials must provide certain specific information about the intelligence operation to the court. None of the statutory exceptions to the warrant requirement apply to the TSP.

Almost immediately, Congress began investigating the TSP. Instead of reining it in, however, Congress enacted the "Protect America Act" last August. That Act amended FISA to allow warrantless surveillance of people "reasonably believed to be outside of the United States." The Act allowed such surveillance for up to a year with the Attorney General or Director of National Intelligence's authorization, did not require specific identification of targets, and provided little meaningful judicial review. Worried about the Bush administration's failure to provide specific information and the Act's potential ramifications, Congress also included a sunset provision causing it to expire in early 2008. The ensuing months have involved a series of battles over the future of the warrantless wiretap program.

In February, the Senate passed a bill that largely extends the Protect America Act and grants retroactive immunity to telecommunications companies who assisted the TSP and are now defending against civil lawsuits alleging that their actions violated the law. The Senate also rejected an amendment clarifying that FISA is the exclusive means under which surveillance can be conducted, thus encouraging the administration's continuing arguments that inherent executive authority and congressional authorization for the use of force in Iraq and Afghanistan justify warrantless surveillance.

In contrast, the House bill, passed in March, contains an exclusivity provision, a provision requiring prior intelligence court approval of surveillance measures except in emergencies, and various oversight mechanisms including audit and reporting requirements. The House bill rejects blanket immunity for telecommunications companies although it makes clear that they can defend themselves by presenting evidence of compliance with the law.

The differences between the oversight and accountability mechanisms in the Senate and House bills are manifest. The Senate bill leaves unchecked the NSA's surveillance abilities. Government officials can easily justify an interception of domestic electronic communications under a standard requiring only that they "reasonably believe" that the target was outside of the United States. Nothing in this standard protects communications to which Americans are parties from being swept up in surveillance dragnets. Indeed, the government may never need to justify such an interception as the Senate will not commit to FISA as the exclusive means of conducting surveillance.

This represents a substantial step backward from FISA's original purposes. Congress enacted FISA after revelations of widespread NSA domestic surveillance abuses in the 1970s — specifically that the NSA had, with the cooperation of U.S. telegraph companies, intercepted all American overseas telegraphic communications. FISA was designed to provide clear guidelines for surveillance and stop its unwarranted expansion. The Senate bill effectively rolls back those safeguards. In contrast, the House bill's warrant requirement and other oversight mechanisms are more consistent with FISA's original purposes. Until the Bush administration can show (and to date it has not shown) that such oversight poses a threat to national security there is no reason to give it carte blanche with respect to surveillance.

The same is true regarding retroactive immunity. The Bush administration has characterized that provision as vital to national security and chastised the House for threatening telecommunications companies with financial ruin merely for helping their country. Such companies, the Bush administration claims, will be unwilling to cooperate with intelligence activities absent retroactive immunity.

The administration's arguments are misleading. The House bill unquestionably forces telecommunications companies to defend their actions in court but it hardly forces them to the brink of financial ruin. In fact, it allows those companies to present evidence to exonerate themselves. Furthermore, the Bush administration's real concern is not that telecommunications companies will walk away from the intelligence game — what remotely sane, public-minded, heavily regulated industry would refuse to cooperate with legal intelligence activities? The telecommunications industry hasn't and it wouldn't and the Bush administration knows it.

The Bush administration's real concern centers on the "state secrets" privilege at the heart of these lawsuits. That privilege allows courts to exclude evidence revealing information potentially endangering national security. Courts often defer to government assertions of this privilege, even dismissing whole cases based on it. As a result, government officials can hide wrongdoing behind broad assertions of the privilege.

The Bush administration has asserted the state secrets privilege in the telecommunications lawsuits but some courts have nevertheless refused to dismiss the lawsuits. The administration thus faces the possibility of having to account for itself and its warrantless surveillance program in court (albeit behind closed doors). Retroactive immunity prevents the lawsuits from reaching court altogether and achieves the administration's goal via a different route. Hence, the Bush administration's call for retroactive immunity has far more to do with keeping its own secrets than with protecting the telecommunications industry or national security.

The House bill adequately protects the secrecy of national security information revealed in the telecommunications lawsuits while forcing the Bush administration to provide actual proof that information endangers national security instead of ill-defined assertions of harm. The Senate bill insulates the Bush administration from having to account for itself at all. Is there really any debate as to the right choice?

Christina Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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