Setting the Record Straight on FISA

Setting the Record Straight on FISA

Civil liberties and national security are not contradictory: they are inextricably linked.


This summer, the House passed the RESTORE Act, a balanced and common sense update to the Foreign Intelligence Surveillance Act (FISA), co-authored by myself and House Intelligence Committee Chairman Silvestre Reyes. Since that time, we have been accused of giving new rights to terrorists and excessive partisanship by Time columnist Joe Klein and “obstructionism” by President Bush. We submitted a response to Time, which the magazine has not published.

In view of all the confusion and misinformation, let me set the record straight.

First, contrary to GOP and media spin, the RESTORE Act does not grant “terrorists the same rights as Americans,” as Klein alleged. The bill explicitly provides that warrants are not needed to intercept overseas communications. When it is not known whom overseas targets might call, the bill sets up “basket authorization” procedures by which entire terrorist organizations can be surveilled without individual warrants. But the bill contains safeguards in the event that Americans’ communications are picked up.

Second, I must strongly disagree with assertions that Democrats are obstructionist or operating in a partisan manner. Last summer, Chairman Reyes and I tirelessly negotiated with Director of National Intelligence Mike McConnell, to develop consensus legislation to address the Administration’s stated concerns about our intelligence capability. We addressed every one of those concerns and when the legislation was described to McConnell, he acknowledged that “it significantly enhances America’s security.” Yet after consultation with the White House, Director McConnell withdrew his support on the eve of the vote.

If you want over-the-top partisanship, look no further than Vice President Cheney’s attorney David Addington, who gloated that “we’re one bomb away from getting rid of that obnoxious FISA Court,” or Director McConnell’s assertion that by merely having an open debate on surveillance, “some Americans are going to die.”

Third, the Administration’s warrantless surveillance program has been riddled with deceptions that began to come to light only when the media first disclosed the existence of the program in 2005. The program itself appears to directly violate the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment, as a federal court in Detroit, the non-partisan Congressional Research Service and independent legal scholars have found. Numerous Republican legislators have agreed. Senator Arlen Specter said: “I do not think that any fair, realistic reading of the September 14 resolution gives you the power to conduct electronic surveillance.” Senator Lindsay Graham declared: “I will be the first to say when I voted for it, I never envisioned that I was giving to the President or any other President carte blanche to go around FISA.

The Administration has also misled the public about the existence, degree, extent and nature of the program itself, and it has overstated the amount of information it has shared with Congress. For years, the President and other officials denied that there was a secret warrantless surveillance program, only to admit it once the truth leaked. When high-ranking DOJ officials balked at the program, the White House went to absurd lengths to try to bully Attorney General Ashcroft into overruling them, even barging into his hospital room while he was in critical condition. They are trying to obscure their misconduct with extravagant claims that the “state secrets” doctrine bars any legal challenge whatsoever, a position that was recently rejected by the Ninth Circuit Court of Appeals. Against that backdrop, it is clear we need vigorous oversight with regular reports to Congress and to the Justice Department’s independent Inspector general.

Fourth, the President wants to grant retroactive immunity to telephone giants who may have participated in an unlawful program, but he has yet to explain why this is vital to our national security. The companies can already avoid liability if they show they received either an appropriate court order or legal certification from the Attorney General.

Civil liberties and national security are not contradictory; they are inextricably linked. To be useful, intelligence information must be reliable and untainted by abuse. So the first thing we need to do is drop the partisan rhetoric and stick to the true record. Under the RESTORE Act, the intelligence community has the flexibility to intercept communications by foreign terrorists without obtaining individual warrants, and the Courts and Congress are given the authority to perform their constitutional oversight roles.

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