FISA Fact Check: Setting the Record Straight on the White House

February 29, 2008

CONTACT: (202) 675-2312 or media@dcaclu.org

As the House of Representatives takes the time it needs to negotiate a bill to amend the Foreign Intelligence Surveillance Act (FISA), the White House has launched a public assault on the legislative body.  The administration claims that the House has endangered the country by letting the Protect America Act (PAA) expire and should pass the bill already approved by the Senate.  The Senate bill, however, is unconstitutional and contains immunity for the telecommunications companies that aided the president’s warrantless wiretapping program.  The American Civil Liberties Union (ACLU) is urging the House to continue to stand strong for the Constitution. 

In a February 22nd letter to the House Permanent Select Committee Chairman Silvestre Reyes, Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell made several misleading claims.  A corrective statement was released by the Justice Department and Office of the Director of National Intelligence regarding the cooperation of “private partners” the following day.  Here, the ACLU refutes some of the administration’s arguments.

The Administration claims that:

  • FISA's requirements, unlike those of the Protect America Act and the bipartisan Senate bill, impair our ability to collect information on foreign intelligence targets located overseas.
  • …"because of the hurdles under FISA's emergency authorization provisions and the requirement to go to the FISA Court within 72 hours, our resource constraints limit our use of emergency authorizations to certain high-priority circumstances and cannot simply be employed for every foreign intelligence target” and that "our intelligence professionals need to be able to obtain foreign intelligence from foreign targets with speed and agility."

The Facts:

  • The NSA and CIA have unfettered authority to wiretap at will outside the United States.  FISA only regulates domestic spying.  No matter what, in an emergency situation, the government can begin a wiretap immediately.  Probable cause is a very low evidentiary threshold, so if the government does not have enough of a justification to obtain a judge’s approval (within 72 hours) there is probably not a very good reason for them to believe there’s an emergency in the first place. 
  • Let’s not forget that this push to amend FISA started because the administration claimed that there was a simple “foreign to foreign” fix needed.  There is substantial agreement that a FISA warrant should not be needed to intercept communications between foreigners in foreign countries.  Since July, the administration and DNI have consistently asked for a mile under the guise of an inch.  If the foreign to foreign fix is all that is needed, it would easily pass with overwhelming bipartisan and bicameral cooperation.  The fact is the administration wants Congress to legalize the warrantless domestic wiretapping program that was disclosed over two years ago (to the outrage of many in Congress, it should be noted) and to make sure the phone companies emerge from their role in the program without a scratch.

The Administration claims that:

  • The FISA Court requires a showing of probable cause before it will authorize surveillance and satisfying the probable cause requirement will result in unacceptable gaps and delays in monitoring communications of foreign terrorists overseas.
  • …"it makes no sense to require a showing of probable cause for surveillance of overseas foreign targets who are not entitled to the Fourth Amendment protections guaranteed by our Constitution."

The Facts:

  • Wrong again.  In an interview last year with PBS’s “Frontline,” James Baker, head of the Justice Department's Office of Intelligence Policy and Review, said the following on the ability of FISA applications to move quickly:

    Frontline: “So you're saying FISA can move very rapidly.”

    Baker: “Very rapidly. Extremely rapidly. I just want to explain that the reason we do it that way is because we're under a 72-hour clock, and we don't want to start the clock running sooner than we need to. It is challenging to finish these applications within 72 hours, so we don't want to start the clock one minute sooner than we need to. It's just a very practical decision. ...

“The point is, there's been no loss of foreign intelligence information. That's the key thing. ... The American people have not been put at any risk because of this process going on. The collection was not ready until it was ready, and once it was ready, we went and got the attorney general's approval. I'm not saying that we can always do it in one minute, but we can do it pretty quick, and we know how to do it, and we've done it many, many times .”

The Administration claims that:

  • …“we have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act."  
  • The Intelligence Community and Department of Justice have worked over the past week with our private partners – whose assistance is essential to our intelligence collection efforts – to mitigate this problem caused by Congress' failure to act, but we have nonetheless missed intelligence information that we could have been collecting to protect the country.  

The Facts:

  • The day after writing the letter to Congress cited above, Mukasey and McConnell backtracked and admitted that telecom cooperation with surveillance under existing orders is continuing.  The fact that there is no FISA backlog, as House Speaker Nancy Pelosi has said, is not challenged by the administration.  Security experts Rand Beers, Richard Clarke, Don Kerrick, and Suzanne Spaulding wrote a letter to Mukasey and McConnell chastising them for their misleading statements about a loss of intelligence: “For new targets that are somehow not covered by the existing authorizations, the FISA court can issue an order, which the telecom companies are legally obliged to follow.  Telecommunications companies will continue to cooperate with lawful government requests, particularly since FISA orders legally compel cooperation with the government.” 
  • Any delays or loss of intelligence rests squarely on the shoulders of the president who refused to sign another extension of the Protect America Act.  The administration can’t have it both ways.  It cannot flatly refuse to extend a law and then blame Congress for the consequences.

The Administration claims that:

  • …"[e]ven prior to the expiration of the Protect America Act, we experienced significant difficulties in working with the private sector because of the continued failure to provide liability protection for such companies."
  • According to a statement from the Department of Justice and the Office of the Director of National Intelligence: "[A]lthough our private partners are cooperating for the time being, they have expressed understandable misgivings about doing so in light of the on-going uncertainty and have indicated that they may well discontinue cooperation if the uncertainty persists…Even with the cooperation of these private partners under existing directives, our ability to gather information concerning the intentions and planning of terrorists and other foreign intelligence targets will continue to degrade because we have lost tools provided by the Protect America Act that enable us to adjust to changing circumstances."

The Facts:

  • If the government is having trouble compelling its “private partners” to help in its intelligence gathering, it is most likely because the government is asking them to do something that is not authorized under the law.  These companies would have no choice but to comply with a legal directive.  Any lack of cooperation or “loss of tools” the administration is bemoaning is its own fault.  The fact is plain and simple: a warrant compels cooperation and provides immunity.  If the government can’t come up with the probable cause it needs to satisfy the FISA court, then these “private partners” are probably correct to not go ahead with the administration’s wink and nod yet again.

To read more about the ACLU’s work on FISA, go to:
www.aclu.org/fisa

To read the AG and DNI letter, go to:
http://www.lifeandliberty.gov/docs/ag-dni-letter-to-chairman-reyes.pdf

To read their corrective statement, go to:
http://www.usdoj.gov/opa/pr/2008/February/08_opa_137.html

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