Back to News & Commentary

FISA "Compromise" Is Actually Not A Compromise At All, Thank You

Michelle Richardson,
Legislative Counsel, ACLU Washington Legislative Office
Share This Page
May 29, 2008

I’m sure you’ve heard about Senator Bond’s proposed “compromise.” He floated an outline late last week at a press conference that represents what he calls his last offer in the negotiations about whether and how to expand our foreign intelligence wiretapping laws. While we’ve only seen a couple key pieces of the legislation, the summary and Congress’ past actions, speak volumes. Watch out for these so-called “concessions” that very well may be sold to you as moderate compromises that protect civil liberties:

Immunity. The draft moves pending lawsuits against the telecoms to the secret Foreign Intelligence Surveillance Court (bad). It apparently allows parties to file briefs with the court (good — but possibly could have happened without the fix). In the end, this so-called “compromise” might actually be worse than where the Senate bill started and will still result in immunity.

Expect people to make hay out of the fact that the proposal raises the level of judicial review from “abuse of discretion” to “preponderance of the evidence.” Evidence of what, exactly? As written, the Senate bill says that the existence of an order — whether legal or not — is enough to dismiss the cases. The court will only review whether 1) the certifications were issued between 9/11 and January of 2007, 2) were issued by the AG or an element of the intelligence community, and 3) were approved by the President. We already know all of these conditions are going to be met. In the end, the cases are going to be dismissed if the government sent them a piece of paper, regardless of whether that piece of paper was legally sufficient under FISA.

This is immunity pure and simple because the companies are NOT being judged on whether they followed the law. If the intent was truly to just have the FISA court review whether the orders were legal — as Mr. Bond and the media keep repeating — the drafters could have in literally in one or two sentences transferred the pending cases to the FISC, and permitted litigation to continue there as to whether the orders satisfied FISA’s requirements.

Prior Court Review. The press release states there is court review before surveillance starts. However, the court review can be eliminated when there are “exigent circumstances” that include situations where information will be lost if is time taken to apply for an order from the FISA court. By definition, it takes time to apply for a court order. With that soft of a trigger, when wouldn’t there be an exigent circumstance? And that’s the whole point — you don’t get information until you apply for a court order and it is approved.There are true emergencies that are reflected in the original FISA — as drafted this “compromise” will probably go way too far. This is quite possibly the quintessential case of the exception engulfing the rule.

For example, under FISA’s current emergency provision, if the court denies the retroactive application after collection has started, the government is required to stop surveillance immediately. The government is prohibited from ever using or distributing the information if it pertains to a U.S. person, except to protect life or limb. These strict back end protections served as a strong disincentive to fudge the true meaning of emergency. However, you can bet money on the fact these protections won’t be in the final draft — they weren’t even in the House Democrats’ last bill. That version instead allowed them to continue surveillance for 30 days while resubmitting the request for an order, continue surveillance through formal appeals if the order is denied, and ultimately, keep and use all the information at the end of the day even if finally the court finds that no emergency or exigent circumstance existed. This problem is amplified because the orders are for entire programs of surveillance, and not individualized warrants as required by FISA. Even if some form of this Democratic formulation ends up in the bill, the “exigent circumstances” provision blows a huge whole through both the letter and the spirit of the prior court review requirement.

Exclusivity. It’s already in FISA. This is not a “concession,” period.

Why did we highlight these three issues? Because these are the three issues that Dems have been demanding. Now that they have at least the specter of court review, exclusivity and an immunity fix — they may just take it and run. Right now it is more important than ever that people call their Representatives and let them know that they are watching — and they know the difference between truly protecting civil liberties and a bum deal.

Learn More About the Issues on This Page