Letter to the Senate Urging Opposition to S. 113, the Expansion of Wiretapping and Other Surveillance under the Foreign Intelligence Surveillance Act (FISA)

April 9, 2003

Re:      Vote NO on S. 113, expanding FISA wiretapping power; Support Feinstein Amendment

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Dear Senator:

We write to urge you to oppose S. 113, which expands wiretapping and other surveillance under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1863 to encompass individuals who are not acting on behalf of any foreign power.  

In so doing, the bill would fundamentally upset the basic balance FISA strikes between civil liberties and national security.  FISA permits secret intrusive electronic surveillance of individuals outside the standards of Title III - the general federal wiretap statute.  Title III satisfies the Constitution's demand that intrusive surveillance can ordinarily take place only whether there is probable cause of criminal activity.  

FISA permits secret surveillance based on an alternate showing: probable cause that those individuals are acting on behalf of a foreign power.  By eliminating this alternate showing for non-citizens within the United States, the bill would violate the Fourth Amendment, greatly expanding the scope of secret government surveillance of individuals where the government lacks the probable cause of criminal activity required by Title III and the Constitution.

Moreover, the Kyl-Schumer bill is unnecessary.  The Congressional investigation of the House and Senate intelligence committees into the September 11 attacks (""the Joint Inquiry"") uncovered a number of serious, structural breakdowns in the intelligence community prior to September 11.  A lack of legal authority to collect intelligence information was not among its findings.  Congress should focus on fixing the problems in our intelligence community, not expanding its surveillance powers.

S. 113 has erroneously been described as necessary to respond to the government's failure to seek a warrant to search the laptop computer of suspected terrorist Zacarias Moussaoui.  The Joint Inquiry specifically rejected that conclusion, finding that government agents ""misunderstood the legal standard for obtaining an order under FISA.""  The Joint Inquiry recommended greater training of FBI and other government lawyers to ensure proper understanding of existing legal authorities.  It did not recommend any change to existing legal authorities, including FISA.

In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter noted, with respect to this proposed change, that the Department of Justice was unable to provide even a single case, even in a classified setting, that explained why new wiretapping power was needed.  As the report states, ""In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.""

Because S. 113 is a legal fix to an essentially bureaucratic problem, S. 113 will not improve national security.  In fact, if passed, S. 113 could do serious harm to the government's anti-terrorism efforts because a court would likely conclude that the surveillance it authorizes violates the Fourth Amendment, making the evidence obtained by such surveillance inadmissible.  The ""foreign power"" standard - which S. 113 eliminates for non-citizens -  is integral to the rationale given by the Foreign Intelligence Surveillance Court of Review in its opinion upholding FISA surveillance against a constitutional challenge.  See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002).

While we do not believe any change to FISA is necessary or warranted, we urge you to support an amendment which may be offered to S. 113 by Senator Dianne Feinstein.  The amendment formally preserves the FISA requirement that the FISA court must determine that the target of a surveillance order is an agent of a foreign power before a surveillance order is authorized.  The amendment is problematic in saying that the court ""may presume"" a foreign power based on conduct - involvement in international terrorism or sabotage - that does not necessary suggest any such connection.  Nevertheless, because the amendment would preserve some discretion on the part of the FISA court to determine that an individual should not be subject to surveillance because they are not, in fact, an agent of a foreign power, we urge you to support the amendment.

For these reasons, we urge you to oppose S. 113 and to support Senator Feinstein's amendment.

Thank you for the consideration of our views.

Sincerely, 

Laura W. Murphy
Director, Washington National Office

Timothy Edgar
Legislative Counsel

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