Re: S. 113, expanding FISA surveillance by defining single person as a ""foreign power""
Dear Judiciary Committee Member:
On behalf of the undersigned organizations, we urge you to reject S. 113, expanding surveillance under the Foreign Intelligence Surveillance Act, 50 U.S.C. ยงยง 1801-1863. We believe it would authorize FISA surveillance that is unconstitutional, and that evidence derived from such surveillance would be inadmissible in criminal cases because it was seized in a manner that violates the protections of the Fourth Amendment.
S. 113 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 legislation would so fundamentally alter FISA standards as to render surveillance thereunder a violation of the Fourth Amendment.
The amendment is fundamentally inconsistent with the Constitution 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 eliminating the need to show that a target of surveillance is connected to a 'foreign power,' thereby writing out of the statute a key requirement necessary to the lawfulness of intrusive surveillance powers that would otherwise be unconstitutional. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while FISA requires no showing of probable cause of crime, it is constitutional in part because it provides ""another safeguard . . . that is, the requirement that there be probable cause to believe the target is acting 'for or on behalf of a foreign power.'"")[1]
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 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 in the absence of a more thorough examination of these issues by the Congress.
Finally, we do not believe any need has yet been demonstrated for such an amendment. While the amendment's proponents have described the bill as required because of the FBI's failure to obtain a FISA warrant on suspected terrorist Zacarias 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, and that the demonstrated connection of Mr. Moussaoui to the Chechen rebels was sufficient to permit the approval of a FISA warrant. This is because the statute already permits surveillance of individuals acting in connection with a group of as few as two individuals engaged in foreign terrorism, a foreign political organization, or a foreign government; there is no need to connect an individual to a specific, ""recognized"" foreign terrorist organization such as Al Qaeda, as some officials had erroneously believed.
For all these reasons, we urge you to oppose this legislation.
Thank you for the consideration of our views.
Sincerely,
American-Arab Anti-Discrimination Committee (ADC)
American Civil Liberties Union
Arab American Caucus of the California Democratic Party Coalition for Civil Liberties
Arab American Institute
Center for Constitutional Rights
Center for Democracy and Technology
Center for National Security Studies
Electronic Privacy Information Center
Fund for Constitutional Government
Human Rights Watch
Muslim Public Affairs Council
National Association of Criminal Defense Lawyers
National Committee Against Repressive Legislation
National Immigration Forum
National Legal Aid and Defender Association
Open Society Policy Center
[1] This and other similarities to criminal wiretap requirements were essential to the review court's holding that ""FISA as amended is constitutional because the surveillances it authorizes are reasonable."" Id. at 56. The undersigned organizations do not agree with that conclusion, but simply note that even a court with the broadest view of the government's surveillance power has found the requirement that the government show probable cause that a target is acting for a foreign power is constitutionally based.