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FISA: Leahy Amendment

KEY CHANGES THE LEAHY AMENDMENT WOULD MAKE TO S 2248, THE UNDERLYING BILL.

{Editor's Note: S 2248 provides retroactive immunity from civil suits involving intelligence activity authorized by the president under the TSP (Terrorist Surveillance Program) between Sept. 11, 2001 and Jan 17, 2007. Section 203 provides prospective immunity for carriers who cooperate with the intelligence community pursuant to strictly defined requests. Section 204 preempts state investigations of the federal government's intelligence collection activities under FISA."

The Leahy substitute amendment does not address or include retroactive immunity. If passed, no retroactive immunity would be available."}

1. Strengthened Assertion that the President Must Comply with Statutes

“The actions and public arguments of the Executive in conducting and later defending the TSP  have underscored the importance of inserting an exclusivity provision directly into FISA.”

“The Committee proposes an amendment to strengthen the exclusivity language contained in S. 2248 to make absolutely clear that FISA is the sole means by which the Government may intercept Americans’ communications for foreign intelligence purposes.” And “… that no future law should be interpreted as having authorized electronic surveillance or overriding FISA unless it does so explicitly”

1b.

“Finally, the Committee proposes an amendment that narrows the current language of section 109(a) of FISA, which provides for penalties against anyone who engages in electronic surveillance, or uses or discloses information resulting from electronic surveillance, except as authorized by law.” “The Committee believes the involvement of the FISA court is an important protection for U.S. persons’ privacy rights, either through the issuance of an order under title I, or through the provisions for the targeting of U.S. persons overseas in section 702. The Committee’s intent is to assert the full authorities of Congress under Article I of the Constitution to require that FISA’s procedures be followed in all cases where FISA applies. ”

2. Increased Oversight by Congress

“The Committee proposes an audit of the TSP (Terrorist Surveillance Program) and any previous, subsequent or related versions or elements of that program, to be conducted jointly by the Department of Justice Office of Inspector General and the Inspectors General of relevant elements of the intelligence community.”

2a. Congressional Access to FISA Court Orders

“The Committee’s proposed amendment would also require that Congress be provided the relevant pleadings that may be necessary to understanding the reasoning behind a particular judicial interpretation of the law”

3. Improvements to Warrant Requirement for Americans Overseas

“The Committee believes that the core features of section 702(c), as passed by the Senate Intelligence Committee, provide important protections for Americans overseas and should be maintained in any final legislation.” The Committee’s proposed amendment includes further revisions from the language contained in S. 2248 to include an emergency provision that enables the Government to respond to our national security needs immediately, but requires the Government to seek FISA court authorization no later than 72 hours after such surveillance is authorized.”

4. Sunset

“The Committee proposes an amendment to shorten the sunset provision in S. 2248 from six years to four years.”

5. Increased Oversight and Discretion by the FISA Court

The Committee passed three proposed amendments to S. 2248 that would provide for increased judicial oversight over the new authorities contained in S. 2248, and enhance FISA court discretion

5a. Use Restrictions

“The Committee’s proposed amendment states that if the FISA court determines that the Government has been using deficient procedures or certifications to acquire information, its use of the acquired information will be limited in the same way that FISA traditionally limits the use of information acquired under its title I emergency exception if the Government is later turned down for a court order.”

5 b. Continued Oversight of Government Procedures

“Minimization procedures provide a measure of protection for the privacy of U.S. persons. Judicial oversight of how these safeguards are working is a critical element in protecting the privacy of U.S. persons in the area of foreign intelligence surveillance.” {Editor's Note: Minimalizing means to define the scope of the surveillance as narrowly as possible to avoid surveillance of unauthorized targets}

“The Committee proposes that the FISA court be granted the additional authority to review whether the Government is complying with minimization rules, and be empowered to ask for additional information that is necessary to make its assessment. A new subsection 702(i)(7) would provide the FISA court with explicit authority to review and assess the Government’s compliance with the minimization procedures”

5c. FISA Court Discretion to Stay Decisions Pending Appeal

“The bill as reported by the Senate Intelligence Committee, mandates that if the FISA court finds that the Government has relied on deficient procedures for conducting surveillance under its new authorities, the Government is entitled, in every case, to continue to use those deficient procedures while it is appealing” “In the Committee’s view, it is unnecessary and unwise to cabin the FISA court’s discretion by imposing a standard mandating that all orders finding Government surveillance procedures to be deficient must be stayed pending en banc and appellate review. The Committee has, therefore, proposed an amendment restoring discretion to the FISA court.”

6. Elimination of Re-Definition of “Electronic Surveillance”

“The Committee proposes an amendment to eliminate the redefinition of the critical term on which FISA is structured: “electronic surveillance.” The PAA and the Senate Intelligence bill both redefine this key term, yet no logical explanation has been offered for why this redefinition is necessary.”

“This redefinition should be eliminated because it is unnecessary to accomplish the goals of the bill, and it could lead to a variety of unintended consequences”

7. Prohibition on Bulk Collection

“The Director of National Intelligence acknowledged at a Senate Judiciary Committee hearing on September 25, 2007 that the Protect America Act would permit “bulk collection” of all international communications into and out of the United States if the Government had the technological capacity to acquire those communications” “The Committee proposes that S. 2248 be amended to explicitly forbid bulk collection.”

8. Strengthened Prohibition on Reverse Targeting

“Reverse-targeting is the prohibited practice of bypassing the FISA court-order requirement by targeting someone overseas in order to mask the Government’s actual interest in the U.S. person with whom that foreign target is communicating.”

“To ensure that the broad new authorities contained in S. 2248 may not be used to engage in reverse-targeting of Americans, the proposed amendment would require an individualized FISA court order when “a significant purpose of such acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States.””

9. FBI Deputy Director as Certifying Official

“The bill as reported by the Senate Select Committee on Intelligence, would have permitted, without restriction, the Deputy Director of the FBI to be the certifying official on FISA warrants.” “The Committee has proposed an amendment that this additional delegated authority be used only when the FBI Director is unavailable.”

IV. RECOMMENDED CHANGES TO TITLE I OF S. 2248

1. Strengthened Assertion that the President Must Comply with Statutes

The Committee proposes an amendment to strengthen the exclusivity language contained in S. 2248 to make absolutely clear that FISA is the sole means by which the Government may intercept Americans’ communications for foreign intelligence purposes. The actions and public arguments of the Executive in conducting and later defending the TSP have underscored the importance of inserting an exclusivity provision directly into FISA. The proposed amendment would make clear that the Government cannot claim authority to operate outside of FISA by alluding to legislative measures that were never intended to provide such authority.

The bill as reported by the Senate Intelligence Committee adds a new section to FISA, section 112, which restates the original 1978 language that FISA is the exclusive means by which electronic surveillance will be conducted for foreign intelligence purposes. See FISA Amendments Act of 2007, S. 2248, 110th Cong. (2007) [hereinafter “S. 2248”] § 112. The Committee has revised S. 2248’s section 112(a) to address intelligence activities intended to collect the “communications or communications information” of United States persons inside or outside the United States. S. Comm. on the Judiciary, complete substitute to S. 2248 (2007) [hereinafter “Judiciary complete substitute”] § 112(a). This language is not restricted to “electronic surveillance” because that collection is addressed by subsection (b). The term “communications information” in this section is intended to apply to non-content information relevant to a communication that may be acquired through surveillance. The intent of this subsection is to prevent the targeting of the communications of U.S. persons by means other than those defined to be “electronic surveillance” in section 101 of FISA.4 However, it is not intended to bring into FISA acquisition procedures or techniques that are lawfully used outside of FISA, including those specifically permitted by other statutes.

The Committee’s bill also proposes a new subsection (c) to section 112 that makes clear that no future law should be interpreted as having authorized electronic surveillance or overriding FISA unless it does so explicitly. This provision is intended to foreclose any argument, as was made by the Department of Justice in its January 2006 White Paper, that the AUMF constituted a separate authority for surveillance outside of FISA.

In its conforming amendments, the Committee’s bill proposes the addition of clarifying language to title 18, United States Code, section 2511, which is the provision allowing the Executive Branch to use a certification to request assistance from electronic communication service providers to conduct surveillance. The current certification language only calls for a declaration that no warrant or order is required, that all statutory requirements have been met, and that the assistance is required. The proposed amendment would mandate that each certification be specific as to why a court order is not required by referencing the applicable statutory provision on which the authority is premised. See Judiciary complete substitute § 102(b). This could include, for example, the provisions in FISA waiving the warrant requirement following a declaration of war.

Ed Black, the President and CEO of the Computer and Communications Industry Association, emphasized the providers’ need for clarity in testimony before this Committee. He not constitutionally solid procedures that are clear and transparent, so that they are not reduced to guesswork about the applicability of immunity under the FISA statute.” “Strengthening FISA: Does the Protect America Act Protect Americans’ Civil Liberties and Enhance Security?”, Hearing before the S. Comm. on the Judiciary, 110th Cong. (2007). If the Government is requesting that an electronic services communications provider assist it in conducting electronic surveillance of Americans, it is entirely reasonable that the Government cite the specific basis for its authority.

Finally, the Committee proposes an amendment that narrows the current language of section 109(a) of FISA, which provides for penalties against anyone who engages in electronic surveillance, or uses or discloses information resulting from electronic surveillance, except as authorized by law. To be consistent with subsection (c), this bill replaces the text “authorized by law” with “authorized by this title or chapter 119, 121, or 206 of title 18, United States Code” in both places that such term appears in section 109(a). Judiciary complete substitute § 102(c).

The Committee believes the involvement of the FISA court is an important protection for U.S. persons’ privacy rights, either through the issuance of an order under title I, or through the provisions for the targeting of U.S. persons overseas in section 702. The Committee’s intent is to assert the full authorities of Congress under Article I of the Constitution to require that FISA’s procedures be followed in all cases where FISA applies.

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2. Increased Oversight by Congress

a. Audit of the President’s Warrantless Surveillance Program

The Committee proposes an audit of the TSP and any previous, subsequent or related versions or elements of that program, to be conducted jointly by the Department of Justice Office of Inspector General and the Inspectors General of relevant elements of the intelligence community. Following the completion of the audit, a joint report would then be submitted to the Intelligence and Judiciary Committees in the House and Senate in unclassified form, but with a classified annex, if necessary. See Judiciary complete substitute § 110.

While certain members of Congress can provide a measure of oversight by familiarizing themselves with classified documents pertaining to the President’s warrantless surveillance program, it is important that the relevant Offices of Inspectors General collectively conduct an inquiry to assimilate the key facts and, among other inquiries, to investigate the procedures by which the Department of Justice approved warrantless surveillance of Americans outside of FISA. This is a critical provision for ensuring a full understanding of the actions of the Government in conducting electronic surveillance outside of FISA for several years after 9/11.

The Committee used broad language to describe the scope of the proposed audit for two reasons. First, the Committee was careful not to describe the program beyond what has been discussed publicly to ensure that classified information is not disclosed. Second, the Committee wanted to ensure that the audit covers the full scope of intelligence activities authorized by the President. In a letter to Senator Specter dated July 31, 2007, the DNI acknowledged that the President authorized “various intelligence activities” shortly after 9/11, and that “[a] number of these intelligence activities were authorized in one order.” He stated that the “Terrorist Surveillance Program” was “[o]ne particular aspect of these activities, and nothing more. . . .” The letter went on to say that the TSP was “the only aspect of the NSA activities that can be discussed publicly, because it is the only aspect of those various activities whose existence has been officially acknowledged.” The broad language used by the Committee seeks to make clear that all of these activities should be included in the audit, and that it not be limited to the “Terrorist Surveillance Program” that the President and others have described previously, and can therefore be discussed.

b. Congressional Access to FISA Court Orders

The bill as reported by the Senate Select Committee on Intelligence, would require that Congress be provided with the orders, decisions and opinions of the FISA court that include significant interpretations of law within 45 days after they are issued. This fills two existing loopholes. First, current law excludes FISA court orders from congressional reporting requirements even though many significant interpretations of law are contained in those orders. Second, semi-annual reporting requirements allow the Government to wait up to a year before informing the Congress about important interpretations of law made by the FISA court. Section 103 requires more timely notification. See S. 2248 § 103(c)(1).

The Committee’s proposed amendment would also require that Congress be provided the relevant pleadings that may be necessary to understanding the reasoning behind a particular judicial interpretation of the law. See Judiciary complete substitute § 103(c)(1). And it would require that significant interpretations of law by the FISA court that were not provided to Congress over the past five years now be provided. See Judiciary complete substitute § 103(c)(2). Access to past jurisprudence, as well as current decisions, is critical to Congress’ understanding of how FISA is being interpreted and implemented.

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3. Improvements to Warrant Requirement for Americans Overseas

The Committee proposes certain changes to the provisions contained in S. 2248 relating to Government surveillance of U.S. persons overseas.

The Committee believes that the core features of section 702(c), as passed by the Senate Intelligence Committee, provide important protections for Americans overseas and should be maintained in any final legislation. The Committee’s proposed amendment includes further revisions from the language contained in S. 2248 to include an emergency provision that enables the Government to respond to our national security needs immediately, but requires the Government to seek FISA court authorization no later than 72 hours after such surveillance is authorized. See Judiciary complete substitute § 702(c)(2)(D). The Committee’s proposed amendment also revises the language contained in S. 2248 to provide for a smooth transition from the existing surveillance authorizations conducted under the President’s Executive Order 12,333 to the new framework.

Subsection 702(c)(3) requires that the Attorney General submit to the FISA court procedures for determining whether a person outside the United States is in fact a U.S. person. The Court must review these procedures to determine whether they are reasonably designed to determine whether a person outside the United States is a U.S. person.

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4. Sunset

The Committee proposes an amendment to shorten the sunset provision in S. 2248 from six years to four years. In view of the broad new authorities Congress is prepared to approve, four years is a sufficient length of time to revisit whether this increased authority is being exercised appropriately and, conversely, to ensure that the Government has the tools it needs to effectively conduct foreign surveillance. See Judiciary complete substitute § 703(c). A four-year sunset will also give the next Administration nearly three years of experience under these new authorities before any reauthorization process.

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5. Increased Oversight and Discretion by the FISA Court

The Committee passed three proposed amendments to S. 2248 that would provide for increased judicial oversight over the new authorities contained in S. 2248, and enhance FISA court discretion.5

a. Use Restrictions

The bill as reported by the Senate Intelligence Committee provides that the FISA court’s review of the Government’s targeting procedures, minimization procedures, and certifications is not required until after the Government has already implemented those procedures and certifications. See S. 2248 § 702(g).

The Committee’s proposed amendment states that if the FISA court determines that the Government has been using deficient procedures or certifications to acquire information, its use of the acquired information will be limited in the same way that FISA traditionally limits the use of information acquired under its title I emergency exception if the Government is later turned down for a court order. See Judiciary complete substitute § 702(i)(5)(B)(ii)(I). In the Committee’s view, there should be at least the potential for consequences if the Executive collects communications using deficient procedures. To prevent the wholesale exclusion of such information in appropriate circumstances, however, the new provision provides increased flexibility by giving the FISA court the authority to allow the continued use of the information under certain circumstances. See Judiciary complete substitute § 702(i)(5)(b)(B)(II). In the Committee’s view, the FISA court should have the discretion to permit or to exclude the use of communications obtained pursuant to deficient procedures.

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b. Continued Oversight of Government Procedures

Minimization procedures provide a measure of protection for the privacy of U.S. persons. Judicial oversight of how these safeguards are working is a critical element in protecting the privacy of U.S. persons in the area of foreign intelligence surveillance.

The Committee proposes that the FISA court be granted the additional authority to review whether the Government is complying with minimization rules, and be empowered to ask for additional information that is necessary to make its assessment. A new subsection 702(i)(7) would provide the FISA court with explicit authority to review and assess the Government’s compliance with the minimization procedures, which are submitted in semiannual reports by the Attorney General and the DNI (and submitted to the FISA court pursuant to section 702(l)(1)). In conducting its review, the court may require the Government to provide additional information regarding the acquisition, retention or dissemination of information concerning U.S. persons during the course of an acquisition.

The Committee also proposes granting the FISA court explicit authority to take remedial action to enforce its orders with regard to minimization compliance and targeting procedures. See Judiciary complete substitute § 702(i)(8). Although the FISA court already has this general enforcement authority, given the court’s reduced role in up-front court approval of minimization and targeting procedures, this provision reinforces that enforcement authority with regard to the new procedures in this new title.

c. FISA Court Discretion to Stay Decisions Pending Appeal

The bill as reported by the Senate Intelligence Committee, mandates that if the FISA court finds that the Government has relied on deficient procedures for conducting surveillance under its new authorities, the Government is entitled, in every case, to continue to use those deficient procedures while it is appealing the FISA court’s decision to the en banc FISA court and to the FISA court of review. See S. 2248 § 702(i)(6).

In the Committee’s view, it is unnecessary and unwise to cabin the FISA court’s discretion by imposing a standard mandating that all orders finding Government surveillance procedures to be deficient must be stayed pending en banc and appellate review. The Committee has, therefore, proposed an amendment restoring discretion to the FISA court. Under this provision the Government may move for a stay pending appeal of a FISA court’s order to the en banc FISA court or the FISA court of review. See Judiciary complete substitute § 702(i)(6).

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6. Elimination of Re-Definition of “Electronic Surveillance”

The Committee proposes an amendment to eliminate the redefinition of the critical term on which FISA is structured: “electronic surveillance.” The PAA and the Senate Intelligence bill both redefine this key term, yet no logical explanation has been offered for why this redefinition is necessary.

This redefinition should be eliminated because it is unnecessary to accomplish the goals of the bill, and it could lead to a variety of unintended consequences. For example, redefining electronic surveillance could potentially nullify FISA’s civil and criminal liability provisions for purposes of the new authorities contained in the bill as those provisions are triggered only by unauthorized interception of “electronic surveillance.” See 50 U.S.C. §§ 1809, 1810. Suzanne E. Spaulding, a national security expert with 20 years of experience at the CIA and in Congress, echoed this concern in testimony before this Committee when she noted that “[b]y defining out of FISA the acquisition of any communication when it is directed at someone reasonably believed to be outside the United States, you remove any statutory protection that FISA might otherwise provide for Americans whose communications might fall into this category.” “Strengthening FISA: Does the Protect America Act Protect Americans’ Civil Liberties and Enhance Security?”, Hearing before the S. Comm. on the Judiciary, 110th Cong. (2007).

To avoid redefining this key term, the Committee’s proposed amendment would affirmatively grant the Government the additional authority it needs to target persons outside the United States in order to acquire foreign intelligence information without an individualized warrant. Judiciary complete substitute § 702(a). This common-sense change explicitly grant the Government the authority it says it needs while avoiding the unintended consequences that may flow from redefining a key term in FISA.

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7. Prohibition on Bulk Collection

The Director of National Intelligence acknowledged at a Senate Judiciary Committee hearing on September 25, 2007 that the Protect America Act would permit “bulk collection” of all international communications into and out of the United States if the Government had the technological capacity to acquire those communications. See “Does the Protect America Act Protect Americans’ Civil Liberties and Enhance Security?”, Hearing before the S. Comm. on the Judiciary, 110th Cong., at 82 (2007). Such broad authority goes far beyond what the Government has said it needs and could mean that millions of communications of innocent Americans end up in Government databases.

The Committee proposes that S. 2248 be amended to explicitly forbid bulk collection. Its proposed amendment would require the Government to include in its certification to the FISA court a statement that: “The acquisition is limited to communications to which at least 1 party is a specific individual target who is reasonably believed to be located outside of the United States, and a significant purpose of the acquisition of the communications of any target is to obtain foreign intelligence information.” Judiciary complete substitute § 702(g)(2)(vii).

This provision does not require the Government to either identify its individual targets or to explain its interest in the targets to the FISA court. It merely has to make a general certification that there is such an interest and that there are individual targets. In addition, the target need not be named individuals. The target could be, for instance, a phone number, or, if the target is a person, the Government need not know the identity of that person. The Committee also wants to make clear that in an active or projected zone of military combat, the acquisition of communications of any target, known or unknown, would be deemed to have a foreign intelligence purpose by virtue of geographic location if such acquisition is tailored to support such military operations.

The Administration has said that it will use the new authorization granted by FISA for targeted surveillance, not bulk collection. Indeed, warrantless bulk collection of millions of Americans’ communications where the Government has no specific interest in the individuals communicating may be unreasonable under the Fourth Amendment. Consistent with the way the Administration has said it plans to use this new authority, this amendment would dispel any concern that this authorization would permit such mass collection and would preserve the Government’s ability to target persons overseas.

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8. Strengthened Prohibition on Reverse Targeting

Reverse-targeting is the prohibited practice of bypassing the FISA court-order requirement by targeting someone overseas in order to mask the Government’s actual interest in the U.S. person with whom that foreign target is communicating.

The bill as reported by the Senate Intelligence Committee contains reverse-targeting language requiring a court order when “the purpose” of the surveillance is targeting a person inside the U.S. This language, however, would allow the Government to conduct ongoing, long-term surveillance of an American’s communications, without an individualized court order, simply by relying on the fact that the Government is really “targeting” the person overseas with whom the American is communicating.

To ensure that the broad new authorities contained in S. 2248 may not be used to engage in reverse-targeting of Americans, the proposed amendment would require an individualized FISA court order when “a significant purpose of such acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States.” Judiciary complete substitute § 702(b)(2) (emphasis added). This prohibition affirms the fundamental and long-standing proposition underpinning title I of FISA that when the Government’s interest is in the communications of a person in the U.S., the Government must conduct this surveillance with a court order based on probable cause.

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9. FBI Deputy Director as Certifying Official

The bill as reported by the Senate Select Committee on Intelligence, would have permitted, without restriction, the Deputy Director of the FBI to be the certifying official on FISA warrants. See S. 2248 §§ 104(1)(D)(ii), 107(a)(1)(E)(ii). The Committee has proposed an amendment that this additional delegated authority be used only when the FBI Director is unavailable. See Judiciary complete substitute §§ 104(1)(D)(ii), 107(a)(1)(E)(ii).

This proposed amendment is not meant to unduly burden the delegation of this function to the Deputy Director of the FBI. It is simply meant to clarify that the certifying official for FISA applications should be, whenever feasible, a politically accountable official who has been appointed by the President and confirmed by the Senate.

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