or, "just say no to immunity. . ."
chairman conyers' full statement
opposing today's FISA-farce compromise vote:
Today, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) opposed H.R. 6304, the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008.
Conyers condemned the telecommunication immunity provision. "This is a pre-ordained outcome and it is unacceptable," he said. “Every American deserves their day in court, and we deserve to learn the truth about the president’s clandestine spying program.”
Conyers also expressed concern about the exigent circumstances provision of the bill, which provides for surveillance without court review for up to seven days. . .
Six years ago, the administration unilaterally chose to engage in warrantless surveillance of American citizens without court review. We are now restoring the balance through enhanced Congressional oversight, Inspector General investigations, and procedures to ensure that FISA remains the exclusive means for authorizing electronic surveillance.
This bill continues the House approach by providing mechanisms to ensure that FISA’s longstanding exclusivity is crystal clear. First, it states that only a new statute directly addressing the executive branch’s foreign intelligence surveillance authority can modify FISA. Secondly, it provides sunshine by requiring requests for assistance to cite the statutory authority under which they are issued. A conforming amendment to Title 18 Section 2511(2)(a) is meant to underscore the need to specify the specific statutory language being relied on, and must be read in conjunction with the entirety of Sec 102 of the legislation. It should not be read to imply that assistance may be sought for electronic surveillance, as defined in the statute, which is not specifically authorized by statute.
In earlier versions of FISA reform, the administration claimed that prior court approval of procedures for overseas surveillance would hurt national security. This matter is now laid to rest, with a consensus that up-front court review is in fact appropriate. The requirement for individual warrants and probable cause determinations for Americans overseas is an improvement over even the original FISA legislation.
There is a provision in the legislation that permits the attorney general and director of National Intelligence to begin a surveillance prior to seeking court approval for the necessary procedures in “exigent circumstances.” This is intended to be used rarely, if at all. In the normal course of events the DNI will have ample time to submit such procedures to the FISA court for its approval before initiating a particular surveillance.
The Congress provided this authority at the request of the DNI to meet unforeseen and extraordinary circumstances, and the administration agrees that it may not be used routinely. The administration understands that the Congress expects its use to be very rare if it is used at all.
The oversight committees will be informed of any use of the exigent circumstances provision and are committed to effective oversight to insure that it is not used to avoid the requirement to secure court approval of the procedures in advance in all but the most extreme circumstances. The exception must not swallow the rule.
The bill requires extensive oversight by Congress and the independent Inspectors General to prevent abuse. It mandates guidelines for targeting, minimization, and to prevent reverse targeting, and tasks the Inspectors General to monitor compliance with those protections.
“Reverse targeting” is specifically prohibited in Section 702(b)(2). The Intelligence Community agrees that this language prohibits the targeting of one or more persons overseas for the purpose of acquiring the communications of a specific person reasonably believed to be in the United States. Thus, Section 702 (f) requires the government to adopt guidelines to insure that this abuse does not occur and the FISA court must review and approve these guidelines and assure that they are consistent with the Fourth Amendment. The oversight committees of the Congress intend to conduct rigorous oversight to insure that these provisions are faithfully observed. In this connection the Committee attaches particular importance to the required annual review and the reporting in that review of the number of disseminated reports which contain a reference to the identity of a US person.
There is currently ongoing multi-District litigation in which a federal District Court is conducting a review of the telecom carriers’ activities and the lawfulness of the president’s warrantless wiretapping program. This bill does not strip jurisdiction from that court and provide blanket immunity, as many wanted.
Instead, in cases where the program was actually designed to detect or prevent a terrorist attack, the court will assess an attorney general certification that can assert – among other reasons for dismissal – that the carriers got certain requests and directives from the administration. The court will look to see if the attorney general’s certification is backed up with substantial evidence. That means not only the underlying directives and requests, but supplemental materials as well. And in cases where the government claims that the company did not provide the alleged assistance, a bald assertion is not “substantial evidence” - the government will have to back up its claims to the court’s satisfaction.
That Title II of this bill provides procedures for assessing lawsuits relating to warrantless surveillance since 9/11 does not imply that such surveillance was lawful or that the Congress as a whole believes that the service providers acted lawfully in providing assistance. Nor can the provision remove the power of the courts hearing the cases to determine if this provision is constitutional.
No company or private citizen asked by the executive branch to provide assistance in securing the private information of Americans without authority of law should read this language as implying that Congress will act in the future to provide such a grounds for dismissing a lawsuit. On the contrary, companies should be on notice that the Congress is very reluctantly providing this defense as a one-time action in an extremely unusual circumstance. It expects private citizens and companies to provide assistance only when specifically authorized by law.
For over thirty years we have mandated that telecommunications carriers not be a merely unquestioning partner to surveillance activities. This bill provides many ways for the companies to question or challenge directives or requests for assistance, and we expect these to be used any time there is something unusual or novel being requested.
Today’s compromise will give the district court direction and procedures for handling the pending lawsuits. However, it is important to note that the question of whether FISA's existing security procedures at 50 USC 1806(f) preempt the state secrets privilege is still being litigated in the courts in a case against the government. Nothing in this bill is intended to effect that litigation, or any litigation against the government or government employees.
Today’s vote is not the end of the matter. The bill provides for a four-year sunset, but this doesn't mean we cannot or should not revisit these issues in the next congressional session. We will conduct vigorous oversight, and will be monitoring the program through the reports and audits. We will be keeping a close eye on the development and implementation of reverse targeting, minimization, and targeting procedures, in order to not only make sure that they are followed, but to inform us as we consider what improvements need to be made to this legislation.