Thank you very much, Mr. Conyers. To my friends on the other side of the aisle who have expressed passion about passing this, you're good Americans, and I respect your position. I respectfully disagree. We have to defend our country from…
Thank you very much, Mr. Conyers.
To my friends on the other side of the aisle who have expressed passion about passing this, you're good Americans, and I respect your position. I respectfully disagree.
We have to defend our country from attacks on the outside. I voted, along with other Members of this Congress, right after 9/11, for the United States to defend itself. But it's equally important that we not lose our freedoms and our constitutional protections while we're engaged in that defense. We take an oath not only to defend the Constitution, but we have to keep in mind that that oath and that Constitution is really part of America's first line of defense.
Think of what it's like to make a phone call, any one of us right now. We make a phone call--even from this Capitol--to call a friend overseas, start talking about matters relating to what's happening in America, what's happening in the world. The way this law is written, without changes, those phone calls could be intercepted. They cannot only be intercepted, but they can be downloaded, transcribed, and stored for future use by the government. I have a problem with that. It's a great concern. What happens is that everyone then becomes suspect when Big Brother is listening.
I don't think that government should have the right to listen in to people's phone calls unless there's a warrant. You have to have probable cause. That's what the Fourth Amendment is about. This bill doesn't have those protections. It extends government's authority to conduct surveillance of persons reasonably believed to be outside the United States for 5 years, and there is a blanket extension, which is an abdication of Congress' constitutional obligation to protect and defend the Constitution and to protect the civil liberties of all Americans.
Given the information we know about our government's past abuse of surveillance authorities, if we pass this bill without any changes to ensure adequate congressional oversight and transparency, we're losing an opportunity.
Since the amended FISA Act passed in 2008, the government has released very little information on how it uses the powers granted under this act. As the Electronic Frontier Foundation recently pointed out, nobody in the government is willing to answer questions about how many Americans' phone calls or emails have been or are being collected and read without a warrant under the authority of the FISA Amendments Act. So Big Brother is not accountable. Even more disturbing is that it's well known that the government has violated the FISA Amendments Act, despite the broad surveillance authorities it provides the government.
A freedom of information request by the ACLU revealed that violations of the FISA Amendments Act and the Constitution continue to occur on a regular basis, until at least March 2010.
According to the ACLU, the law is written so broadly that a phone call by a U.S. citizen to a U.S. citizen overseas discussing general foreign affairs could be listened in on. Section 702 of this act allows the government to intercept the communication of any U.S. citizen absent probable cause, in subversion of their Fourth Amendment rights. So Big Brother is listening.
There's no doubt that Congress is abdicating its responsibility when it passes a blanket extension of this bill without knowing how many Americans have been affected by FISA or the government's interpretation of the law. Without vital civil liberties safeguards and a minimum of transparency, an extension should be rejected.
Big Brother is not accountable. Let's vote against Big Brother. Let's vote to protect the Fourth Amendment.
The Constitution Project
report on the fisa amendments act of 2008
Accordingly, we, the undersigned members of The
Constitution Project's Liberty and Security Committee,
recommend:
I. Increased Judicial Review of Surveillance
Authorizations: The FAA should be amended to require more
robust judicial review by the FISC to authorize programmatic
surveillance and ensure that it is appropriately focused on
foreign intelligence. Specifically:
(a.) Congress should restore the requirement that foreign
intelligence be the primary purpose of the programmatic
surveillance.
(b.) When seeking approval for programmatic surveillance,
the government should be required to (1) explain the foreign
intelligence purpose of the proposed surveillance, (2) define
the scope of planned interceptions, and (3) provide a risk
assessment and an estimate of reasonably anticipated
interceptions of the communications of U.S. persons and
individuals located within the United States. The
surveillance should only be permitted after the FISC has
thoroughly evaluated these submissions to ensure that
surveillance is appropriately designed to acquire foreign
intelligence information from legitimate targets without
interfering with the privacy rights of U.S. persons and
individuals located within the United States.
(c.) Additionally, the government should be required to
develop and submit to the FISC procedures for determining
when an acquisition may be expected to collect communications
to or from the United States. Then, in cases where the
planned surveillance may reasonably be expected to intercept
communications to or from a person reasonably believed to be
in the United States, the government should be required to
obtain a FISA warrant under pre-FAA standards.
2. Inclusion of Warrant Requirements and Other Safeguards
for Post-Collection Use of Information: The FAA should be
amended to require that the government obtain a warrant from
the FISC before searching collected communications for
information on a specific U.S. person, decrypting the
identity of a specific U.S. person party to a conversation,
or reviewing communications reasonably believed to be to or
from the United States. As required under the pre-FAA version
of FISA, the warrant should be based upon a showing of
probable cause to believe that the target is an agent of a
foreign power or has committed a crime, and that evidence of
the crime will be found and must name its target(s) with
particularity. Moreover, Congress should ensure that
collected information is being properly used for foreign
intelligence purposes, including at the very least a
requirement that authorities obtain a warrant before using
data for law enforcement purposes. Finally, Congress should
amend the FAA to require more stringent procedures for
minimization, including periodic, ongoing FISC review of the
implementation and efficacy of such procedures.
3. Increased Reporting and Oversight: More information
about the intelligence community's use of the FAA should be
provided to Congress and the public. Before reauthorizing the
FAA, Congress should demand and review detailed information
regarding the operation of the FAA surveillance program to
date, including the extent and scope of interceptions of the
communications of U.S. persons and individuals located within
the United States. Further, the Inspector General of the
Intelligence Community should be required to audit these
surveillance programs and issue annual reports to Congress
regarding how government surveillance has been conducted. In
particular, these reports should include: statistics
regarding how many U.S. persons' communications have been
intercepted by the government; aggregate statistics on the
number of intercepted communications in total, and the number
of intercepted communications to or from the United States or
involving any U.S. person; an analysis of the performance of
the government's targeting and minimization procedures; and
an explanation of how collected information has been used,
including the number of times the information has been used
for law enforcement rather than foreign intelligence
purposes. These reports should also be provided in an
unclassified form released to the public. Additionally, as
much as practicable, more information on the FAA should be
released to the public, including important decisions by the
FISC and Foreign Intelligence Surveillance Court of Review,
redacted as necessary.