Congressman Porter J. Goss
Chairman, House Permanent Select Committee on Intelligence
108 Cannon House Office Building
Washington, DC 20515-0914
Congressman F. James Sensenbrenner Jr.
Chairman, House Committee on the Judiciary
2332 Rayburn House Office Building
Washington, DC 20515-4909
Dear Chairmen Goss and Sensenbrenner:
We understand that Senator Kyl plans to offer an amendment to the Foreign Intelligence Surveillance Act in the conference on the Intelligence Authorization bill. We urge you to reject the amendment. We believe it would render the FISA unconstitutional and that, moreover, it is inappropriate for the House to consider such a substantive and fundamental change to the FISA for the first time in the conference on the Intelligence Authorization bill, where the amendment is outside the scope of the conference.
The amendment, introduced in the Senate as S.2586 (Senators Kyl and Schumer), would amend FISA to define a foreign power as including a single person, in order to allow FISA surveillance of non-citizens suspected of ""activities in preparation"" for ""lone wolf"" terrorist activities by persons not suspected of being members of an international terrorist group. The amendment would so fundamentally alter FISA standards as to render surveillance thereunder a violation of the Fourth Amendment. The amendment is fundamentally inconsistent with the statutory scheme because it would authorize FISA surveillance against individuals with no showing that they are acting on behalf of a foreign terrorist organization or government. In doing so, the amendment would eliminate the constitutional requirement that the lesser standards and privacy protections authorized for FISA surveillance be limited to use against foreign powers and their agents. It would do so by the locution of defining a lone individual as a ""foreign power.""
We believe that it is inappropriate to consider further amendments to the FISA, when it is not yet known how those enacted in the USA PATRIOT Act are working. But, in all events, if further amendments are needed, they should be proposed and debated by your Committees with due consideration for the important privacy and national security considerations at issue in the statute. Especially given the lack of information about the USA PATRIOT Act amendments and the recent revelations of FBI violations of the FISA, it is inappropriate to fundamentally change the statutory scheme by an amendment adopted in conference.
Finally, we do not believe any need has yet been demonstrated for such an amendment. While the amendment's proponent has described the bill as required because of the FBI's failure to obtain a FISA warrant on Moussaoui, we note that in testimony before the Joint Inquiry regarding September 11, the FBI acknowledged that various officials had misinterpreted the existing law to require a higher standard than the FISA in fact requires. Moreover, the statute already permits surveillance of individuals acting in connection with a group of as few as two individuals engaged in foreign terrorism.
For all these reasons, we urge you to oppose adoption of any such amendment in the Intelligence Authorization conference.
Thank you for the consideration of our views.
ACLU Washington National Office
Laura W. Murphy, Director
Gregory T. Nojeim, Associate Director
Center for Democracy and Technology
James X. Dempsey, Deputy Director
Center for National Security Studies
Kate Martin, Director
Open Society Policy Center
Morton Halperin, Director