ACLU Letter to Congresswoman Jane Harman Supporting Her Bill, H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act” H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act”

The Honorable Jane Harman
Ranking Member
House Permanent Select Committee on Intelligence
United States House of Representatives
Washington, DC 20530

Re. Support for H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act”

Dear Congresswoman Harman:

On behalf of the American Civil Liberties Union, and its hundreds of thousands of activists, members and fifty-three affiliates nationwide, we write to express our support for H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act.”

H.R. 5371 reinforces the requirement that the president must follow the laws passed by Congress. The bill reaffirms what the Constitution and the plain language of the law require: that the government must get a court order before monitoring Americans’ communications. That order must be based on a judicial finding that there is probable cause of either criminal activity or that the target of the wiretap is an agent of a foreign power or an American conspiring with a foreign power.

The bill also makes clear that Congress meant what it said when it passed the Foreign Intelligence Surveillance Act (FISA) and provided that its provisions along with the provisions in the criminal code are the “exclusive” procedures for wiretapping Americans in this country. Indeed, Congress tried to put to rest the very claims President Bush is making today: “[E]ven if the president has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.” H.R. Rep. No. 95-1283, pt. 1, at 24 (1978). This is particularly critical because FISA “was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.” S. Rep. No. 95-604(I), at 7, 1978 USCCAN 3904, 3908. This is the same justification being used today.

H.R. 5371 would also make clear that the Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, does not authorize the illegal NSA spying programs that investigative reporters have uncovered. That resolution does not give the president a blank check to break any law he chooses. The AUMF says nothing about repealing protections for Americans’ civil liberties, and it does not amend or alter the legal requirement that the government get an order from the FISA court before monitoring the conversations and calling patterns of Americans.

The bill would also address the idea of increasing the speed of the FISA process by inviting the president to report to Congress about how to further streamline processing of information and expedite FISA review. It would also authorize additional appropriations to aid in FISA processing of requests for orders for surveillance. These changes underscore the legal requirement that there be a check on whether such surveillance is warranted, rebuffing the suggestion that the government can simply bypass this mandated review.

For all of these reasons, we are pleased to support this responsible legislation that reinforces the rule of law that protects the liberty of all Americans.

Sincerely,

Caroline Fredrickson,
Director, Washington Legislative Office

Lisa Graves,
Senior Counsel for Legislative Strategy