Dear Chairman Rockefeller and Vice Chairman Bond,

We write in regard to your May 1, 2007 hearing on the Administration’s proposal to rewrite the Foreign Intelligence Surveillance Act (FISA).  We are very concerned that a number of statements made by the Administration were inaccurate or misleading.

In particular, we would like to draw your attention to the following: 

• Inaccurate Administration claim: The proposal would require a warrant before capturing content on U.S. soil.

Director of National Intelligence McConnell stated that the Administration’s proposal would require that a warrant be obtained every time content is collected in the United States, thereby protecting the privacy of U.S. persons.  When pressed on this issue, he stated, “Sir, if it’s inside the United States, regardless, it would require a warrant, as it does today.”

In fact, Section 402 of the Administration’s proposal changes the definition of “electronic surveillance” to place outside the scope of FISA -- and therefore not subject to a warrant -- the untargeted tapping on U.S. soil of international phone calls or other communications made or received by U.S. persons inside the U.S.  This is a major cutback in the privacy protections afforded U.S. citizens and others on U.S. soil under current law. 

• Inaccurate Administration claim: The proposal would not change how the NSA treats U.S. persons.

DNI McConnell stated, “This proposed legislation does not change the law or procedures governing how NSA or any other government agency treats information concerning U.S., or United States, persons.”  That statement is patently incorrect: the bill lowers the standard for collecting the communications of U.S. persons and also allows for greater use of what is captured.

First, as discussed above, the proposal would allow for warrantless surveillance of all international communications into and out of the United States, so long as the government is not targeting the communications of a particular, known U.S. person who is inside the U.S.  This applies both to Americans and foreign citizens, even when a U.S. person is making a call in the privacy of his own home, and even when the government has no reason to believe that the U.S. person is in contact with suspected terrorists. Under current law, the NSA may only vacuum up satellite content transmitted internationally.  The bill expands this authority to wire communications.  This expansion greatly increases the amount of spying on phone calls and emails that is permitted without a warrant and without any suspicion of wrongdoing.

Second, the Administration’s proposal strips important protections for U.S. persons whose communications are accidentally captured while targeting foreigners, foreign organizations or other countries.  It deletes the requirement that the government destroy information on U.S. persons collected without a warrant under what is often referred to as the embassy exception but is in fact a “leased line” exception” , while at the same time vastly expanding that exception, permitting the retention and dissemination of more information regarding U.S. persons.

• Misleading Administration claim: FISA currently requires judicial approval for wiretapping non-U.S. persons located outside the United States.

DNI McConnell testified, “Today’s FISA requires judicial authorization to collect communications of non-U.S. persons – i.e. foreigners – located outside of the United States.”   The truth is that FISA does not require a warrant for wiretapping of the communications among foreign nationals overseas.  50 U.S.C. § 1801(f).  This statement is flatly inconsistent with the testimony, just last year, by the head of the NSA, who told the Senate Judiciary Committee that, “[i]ndeed, by far the bulk of NSA’s surveillance activities take place overseas, and these activities are directed entirely at foreign countries and foreign persons within those countries.  All concerned agree, and to my knowledge have always agreed, that the FISA does not and should not apply to such activities.” Statement of Lt. Gen. Keith B. Alexander, Director, National Security Agency, before the Committee on the Judiciary, July 26, 2006 (emphasis added).

FISA generally does require judicial approval, before the fact or afterward in the case of an emergency, if the government is -- from a location inside the U.S. -- intercepting a call between a foreigner who is overseas and a U.S. person who is in the U.S., but that is as it should be, since FISA is protecting the rights of Americans in the U.S.

As a result of certain developments associated with the Internet, some foreign-to-foreign communications pass through the U.S. and are accessible to interception here.  NSA has argued – and  the Administration again suggested at the May 1 hearing -- that NSA needs a court order to intercept inside the U.S. a communication between two foreigners both of whom are outside the U.S.  We can find no such requirement in FISA, but we have long said that we do not oppose amending FISA to clarify that it does not apply to foreign-to-foreign communications accessible within the U.S.  Such an amendment could be achieved with language far narrower than that in the Administration’s bill, such as language in the bill co-sponsored by Senators Feinstein and Specter, S. 1114.

• Misleading Administration claim: “Minimization” procedures prevent the NSA from keeping, using or disseminating information on US persons. 

During his testimony, DNI McConnell stated, “[a]t all times, NSA applies procedures approved by the Attorney General to minimize the acquisition, retention and dissemination of information concerning U.S. persons….  They eliminate from intelligence reports incidentally acquired information concerning U.S. persons that does not constitute foreign intelligence.  The information is not targeted, stored, retained, or used by the intelligence community.” However, what the Administration is proposing is to greatly broaden what can be lawfully acquired regarding Americans and also what can be stored, retained, and disseminated. We believe that agency minimization is no substitute for judicial review. 

The Administration witnesses also failed to mention that the Administration’s proposal eliminates important minimization requirements now in the law.  As noted, FISA includes a ”leased line” exception,” which allows the government to wiretap without a warrant communications over a line used exclusively by foreign powers.  This exception is tempered by provisions that would (i) send the government to the FISA court for prior approval if there is a substantial likelihood that U.S. person information will be captured, and (ii) if such accidental acquisition occurs, require that the information be destroyed within 72 hours if it does not indicate a threat of death or serious bodily harm.  The Administration’s proposal strikes both of these sections while also greatly expanding the exception, thereby reducing the effectiveness of minimization procedures and increasing the opportunities for the government to retain information collected on U.S. persons. 

Similarly, FISA currently provides for emergency physical searches with subsequent court review.  If the FISA court later finds that the original search was unlawful, any information gathered during that search may not be used or disseminated unless it indicates a threat of death or bodily harm.  The draft proposal would expand this exception for keeping U.S. person information, including by allowing retention of information that “is significant foreign intelligence information,” a phrase that is broadly defined and goes far beyond terror- or spy-related activity.

• Inaccurate Administration claim: The proposal does not grant immunity to those who intentionally broke the law. 

When Senator Wyden asked whether immunity granted in Section 408 applied to those who intentionally broke the law, DNI McConnell stated, “[o]f course not, Senator.  It would never apply to anybody who knowingly broke the law.” This statement is completely incorrect under the plain language of the proposal.  Under the Administration’s bill, immunity can be given, at the Attorney General’s sole discretion (or in the discretion of anyone he designates), to anyone who cooperated in the past five years with government surveillance outside the procedures of FISA—including government employees as well as companies that knowingly cooperated with surveillance activity without a warrant in situations where a warrant is required by law.

As the Chairman noted in his opening remarks, we can expect the Attorney General to use this extraordinary and unprecedented authority to achieve dismissal of all pending cases brought against telecommunications companies for knowingly cooperating with wiretaps outside the procedures of FISA.

* * *

In conclusion, we believe your committee received very misleading assurances from the Administration about how the Administration’s draft proposal would affect the rights of Americans.  We urge you to press the Administration for an accurate description of its bill on the public record.  Until the Administration’s public statements are consistent with the text of its bill, it is impossible to fairly consider whether the proposal is justified.  The intended and unintended consequences of such numerous and far-reaching changes to the law are too complex to be rushed as the administration has proposed.  Such changes require far more public debate about the effect on Americans’ privacy and security.

Respectfully yours,

American Civil Liberties Union
Center for American Progress Action Fund
Center for Democracy and Technology
Center for National Security Studies
Open Society Policy Center