FISA needs oversight, amendment before reauthorization

To watch the Senate floor, you’d never guess that we are just weeks away from the sunset of the FISA Amendments Act – the expansive law that authorized warrantless wiretapping.


While the House passed a five-year extension earlier this fall, the Senate has yet to debate an extension, consider amendments or hold a vote. The list of ‘must-do’ items is long, but making sure the FISA amendments get a meaningful debate and amendment process must be a priority.

The FISA Amendments Act passed in 2008 after a protracted and contentious fight over whether the George W. Bush warrantless wiretapping program would be congressionally sanctioned and whether anyone would ever be held accountable for major violations of longstanding privacy laws. The answers would be respectively, yes, enthusiastically, and no, of course not. The law now permits the government to obtain year-long programmatic surveillance orders. The administration needs only to certify that it is not targeting any particular American or person in the U.S. It can otherwise vacuum up international communications, even when one party is an American in the U.S. and without alleging anyone is actually engaged in terrorism or espionage. While some try to characterize this surveillance as incidental or accidental, it is clear from the legislative history that such communications are fully intended to be covered by this law.

There are two things that need to happen before Congress ultimately reauthorizes the FAA for any significant length of time. The first is basic disclosures about how this very intrusive law works. When it passed four years ago, Congress promised to conduct oversight, and it certainly has received classified reports with limited information. But to date, no one has received an estimate of how many Americans have been picked up in FAA surveillance or concrete information about how that information is protected once it lands in government hands. There is no need to release information on sources or methods to have this basic conversation.

In addition, Congress simply must dislodge the secret FISA Court opinions that interpret the scope of this law and our Fourth Amendment rights in intelligence investigations. Senators have publicly confirmed that FISC opinions do, in fact, exist and discuss the FAA and include interpretations of the Constitution. That they remain secret, and Congress is asked to reauthorize the law without the benefit of their holdings, is unbelievable. The administration started reviewing FISC opinions several years ago to determine whether any could be released in whole or part. It’s time that Congress leaned on them to get these incredibly important documents released to the extent possible.

Beyond transparency, the FAA needs common-sense amendments to better protect American information that is caught up in these international surveillance programs. FAA supporters promise that the program is about foreigners abroad yet balk at rules to protect information on Americans here.

None of these suggestions actually interfere with the massive collection allowed by the FAA and are really aimed at after-the-fact safeguards and good government oversight. They are so moderate that then-senators Obama and Biden cosponsored and voted for similar amendments in 2007 as they ran for president. They are, however, excellent first steps towards accountability and privacy.

Undoubtedly some will contend ‘there is no time’ to deal with these major transparency and privacy issues in one of the most expansive surveillance laws of the post-9/11 era. But senators Wyden, Leahy, Merkley and Tester have been working on simple amendments to address some of these problems and only need the floor time to offer them. Don’t be fooled – if they are not given the opportunity to offer and debate these now, it’ll be another four or five years until Congress at large hears a peep about this massive surveillance program.

Richardson is legislative counsel at ACLU.

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