On behalf of the American Civil Liberties Union (“ACLU”), America’s oldest and largest civil liberties organization, its 53 affiliates and over half a million members and activists, we write to share our analysis of S. 2248, the FISA Amendments Act of 2007.  We strongly urge you to reject any attempts to grant telecommunications companies immunity for spying on their customers in the wake of 9/11 and to support the Judiciary Committee amendments that put reasonable checks and balances on an otherwise unfettered spying program currently set forth in the corresponding Intelligence Committee provisions.

In the upcoming weeks, you will be asked to choose between the Intelligence Committee/ Bush wiretapping bill and a more moderate Judiciary Committee version.  The Rockefeller / Bush version of S. 2248 no less than guts the Foreign Intelligence Surveillance Act (FISA) and writes the current Protect America Act in stone.  It simply allows for the mass, untargeted collection of all communications coming into and going out of the US without prior court review – as long as no one person in the US is the target of the interception. The only role for the Foreign Intelligence Surveillance Court (FISC) is to approve targeting procedures after surveillance programs have begun. It further allows the government to use these American communications however it sees fit, and does not mandate any destruction or sequestration, even when a communication is completely innocent. 

The Rockefeller / Bush bill is even worse than the Protect America Act in that it grants the Attorney General the authority to singlehandedly kill all pending cases regarding warrantless wiretapping.  It effectively prevents any court or any public utility commission from reviewing whether state and federal laws were broken or the Constitution violated after 9/11.   

While the ACLU still has reservations about the Judiciary reported version of S.2248, it is the far preferable option in two ways.  First, it requires that surveillance conducted under the expansive program at least be limited to “communications to which at least 1 party is a specific individual target believed to be located outside of the United States,” preventing massive untargeted dragnets.  While this does not completely alleviate our Fourth Amendment concerns, it greatly limits what the government can collect under the new program, and reinserts some form of articulable suspicion or predication back into the process.  Indeed, the Director of National Intelligence has testified that the National Security Agency does not and does not want to conduct massive dragnets – so there is simply no reason for Congress to grant this unconstitutional and unnecessary authority.

Second, the Judiciary version does not dole out blanket immunity for past illegal activities. Outright dismissal of all pending cases would serve not only as a get-out-of-jail free card for the telecommunication companies that let the government spy on its citizens, but would help hide forever the government’s own wrongdoing.  There will be no incentive to follow the law in the future if Congress sets a precedent that retroactively sanctions illegal behavior without any consequence whatsoever. 

But most importantly, the plaintiffs in these cases deserve their day in court to vindicate their rights – and complete immunity only serves to frustrate that process.  This overzealous executive branch has tapped the phones and read the emails of an unknown number of Americans, and they have a right to know what happened and to prevent it from happening again in the future. 

It’s been nearly two years since we discovered that our government wiretapped our phones and read our emails without a warrant and in violation of federal law and the Constitution.  To date, we still don’t know the extent of that program yet Congress stands poised to sanction an even broader authority and bury the crimes of the past.  We strongly urge you to resist any attempts to prevent Americans from having their day in court and to support the important limitations in the Judiciary version of the bill. 

Sincerely,

Caroline Fredrickson,
Director, Washington Legislative Office