The Foreign Intelligence Surveillance Act: Myths and Facts

Document Date: July 31, 2007

The administration is asking for greater authority to wiretap without warrants in a proposal being floated to House and Senate Intelligence Committees today. President Bush wants Congress to make significant changes to the Foreign Intelligence Surveillance Act that would allow warrantless spying on calls and communications between Americans and their friends and relatives overseas.

MYTH: We need this now.
FACT: This is not the time to hand even more power to an administration that has denied the legislative branch’s constitutionally mandated oversight role and refused to hold the attorney general accountable for a series of contradictory statements. The only thing more outrageous than the administration’s call for even more unfettered power is a Congress that would consider giving it.

MYTH: The Foreign Intelligence Surveillance Act needs to be modernized.
FACT: The Foreign Intelligence Surveillance Act has been updated more than 50 times since being enacted in the ’70s. It was updated as recently as last year.

MYTH: We need warrants to wiretap foreigners abroad.
FACT: Current law allows foreign-to-foreign communications to be intercepted without a warrant. What this proposal is really about is the right to wiretap Americans – without a warrant – who are speaking with people overseas.

MYTH: FISA has not kept up with new technology.
FACT: There is absolutely no new technology that evades FISA. Even the man responsible for prepping and filing all FISA applications, James Baker, head of the Justice Department’s Office of Intelligence Policy and Review, has said that, “There’s no type of collection that’s prohibited by the statute.” FISA was modernized by the Patriot Act, by Intelligence Reform legislation and by the re-authorization of the Patriot Act – indeed has been updated 50 times since it was enacted in 1978.

MYTH: Congress knows the facts about the NSA warrantless spying program.
FACT: The Senate Judiciary Committee asked for the legal rationale for the program nine times before issuing subpoenas, and still hasn’t received an answer due to consistent stonewalling by the administration and the Department of Justice. The American public and their elected senators and representatives do not yet know the full extent of the warrantless wiretapping program and the extent to which FISA has been violated. So why would Congress grant additional power to this administration?

MYTH: The telecom giants need immunity.
FACT: The administration has asked for a provision that would give immunity – from criminal prosecution as well as civil liability – for the telecom companies’ participation in any future warrantless wiretapping program. It is unprecedented to give sweeping immunity to an entire industry – especially before a full and public airing of the facts.

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