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Let’s Not Repeat the Mistakes of the Patriot Act

I sit on the Intelligence Committee, and there is no question that some of that committee’s work must be conducted behind closed doors due to the sensitive nature of the information it handles on a regular basis. But it would have been far preferable if the Intelligence Committee had considered its FISA legislation in a more open process. As it drafted its bill, that Committee would have benefited from the input of a wide variety of experts. But those experts, who have quite a different point of view on the issues raised by this bill than the Administration, were not able to comment on it before the committee marked the bill up.

So I am particularly glad that the Judiciary Committee is holding this open markup, and that it has held open hearings on these issues. The public should have the ability to see what we are doing on this very important issue. In addition, this committee’s expertise in privacy and civil liberties, and FISA, is crucial to this debate.

This committee’s consideration is also important because the bill reported by the Intelligence Committee, which Senator Wyden and I voted against, is badly flawed. Given the promises that were made after the rushed consideration of the Protect America Act last summer, I was very disappointed that the bill reported by the Intelligence Committee did not do more to protect the privacy of law-abiding Americans.

As the members of this committee are well aware, before leaving town for the August recess, Congress bowed to pressure from the administration by vastly expanding the government’s ability to eavesdrop without a court-approved warrant. That legislation, the so-called Protect America Act, was rushed through without adequate consideration, but at least it had a six-month sunset to force Congress to do its homework and reconsider the approach taken in that bill.

Congress should take this opportunity to fix its mistakes and pass a new bill that lets the government spy on suspected terrorists but also protects Americans’ basic freedoms. This time around, Congress must stand up to an Administration that opposes reasonable privacy protections for law-abiding Americans and that is insisting on immunity language that would effectively prevent courts from ruling on the legality of its warrantless wiretapping program.

Let me be clear. I agree that there is a legislative problem that needs to be addressed. Congress should make clear that when foreign terrorists are communicating with each other overseas, the U.S. government doesn’t need a warrant to listen in, even if the collection ends up taking place in this country because of the way modern communications are routed. Unfortunately, the bill recently approved by the Senate Intelligence Committee goes far beyond fixing that problem, just as the Protect America Act did.

It still allows the government to listen to communications between Americans in the United States and their friends and colleagues abroad without judicial oversight, even if no one involved has any connection to terrorism or any other criminal activity. The government could secretly monitor the communications of an American reporter talking to sources overseas, or an American e-mailing relatives or friends abroad, without any meaningful protections for those Americans. These aren’t hypothetical concerns. Because the whole point of these bills is to allow the government to intercept communications in the U.S. and to get them directly from the telecommunications companies, it will result in the collection of enormous numbers of communications involving Americans here at home, without a warrant and without court oversight.

It is critically important that we understand the impact that this legislation will have on the privacy of Americans. Before the PAA, all of these communications were collected through a warrant. Now, no warrants are required and the Court has next to no ability to ensure that Americans’ communications are protected. At the same time, the scope of these new warrantless collection authorities are far beyond what is commonly understood. Even the Administration’s illegal warrantless wiretapping program at least focused on terrorism. This bill allows for collection to obtain “foreign intelligence information,” which is almost anything. The person with whom the American is speaking does not have to be a terrorist suspect. They don’t have to be a suspect of any kind.

But the bill is even broader than that. The Director of National Intelligence confirmed during a hearing of this Committee that the PAA, and presumably this bill as well, authorizes bulk collection of international communications, meaning the government doesn’t have to have any reason at all for collecting the communications. It could just suck it all up. In America, we understand that if we happen to be talking to a criminal suspect, our conversations might be overheard by the government. That applies to terrorists overseas as well. What we don’t expect is that all our international conversations could be overheard. And we certainly don’t expect that our conversations could be disseminated without any meaningful court oversight. That is why additional privacy protections are so critical, but they aren’t in this bill.

Now, the Senate Intelligence Committee bill does make improvements over the PAA in some respects. It requires court orders to target Americans overseas. It also gives the FISA Court a small role in reviewing the procedures the government will use to determine if its targets are overseas. But under the bill, the government would not have to get approval from the FISA court until after the procedures have gone into effect. And the court has virtually no power to ensure the government is following even those minimal requirements, much less to protect the privacy of Americans with whom overseas targets are communicating.

In America, the courts are supposed to have the last word in protecting individual rights, not the executive branch. It is essential that the FISA court have the power to exercise continuing oversight over this new and very broad power that the bill gives to the government.

As we work on this bill, I ask my colleagues to keep in mind how common international communications now are. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Oftentimes the connections were spotty. Now, particularly with email, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas all the time. Reporters have sources all over the world. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.

It is common for those who want to give the government new powers to argue that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. I am going to offer amendments that attempt to deal with these issues. If we are going to give the government broad new powers that may very well lead to the collection of information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing any of the efficacy of these new powers for collecting information that will help protect our national security.

That is the point I want to emphasize. This is not a zero-sum game. Not every protection for privacy and civil liberties leads to a reduction in the ability to identify and capture those who would harm us. We can and we must protect both privacy and national security. We just have to work a little harder to find ways to do that.

Let me remind my colleagues of words spoken by Judge Michael Mukasey, who this committee just reported to the floor to be the next Attorney General. At his confirmation hearing, he said: “We can’t turn our society into something that’s not worth preserving in order to preserve it. That’s not a formula for success.” I believe he is right. This Congress, and this committee in particular, needs to pay closer attention to the effect of the powers it grants the government on the privacy and freedom of innocent citizens.

In one very significant respect, the Intelligence Committee bill is far worse than the PAA. It provides retroactive immunity to companies that allegedly cooperated with the illegal warrantless wiretapping program set up secretly after 9/11 ­ an illegal program that continued for more than five years.

I am strongly opposed to this entirely unjustified grant of immunity. For one, it is unnecessary. Current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. This limited immunity already protects companies that act in good faith while also protecting the privacy of Americans’ communications. There is no reason to grant companies that allegedly cooperated with the program a new form of retroactive immunity that undermines the law that actually applied during the course of this illegal program. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to grant a new form of retroactive, blanket immunity for alleged cooperation with an illegal program. It would also very likely prevent the courts from ruling on the warrantless wiretapping program, which would explain why the administration is pushing so hard for it. This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all.

Congress should never have passed the so-called Protect America Act, even for six months. We should fix this law to make sure we protect Americans’ privacy as we wiretap terrorists and other foreign intelligence targets. We also should not be granting unjustified retroactive immunity for those alleged to have cooperated with the Administration’s illegal warrantless wiretapping program.

It is my hope that the Judiciary Committee will pass a better bill than the Intelligence Committee did. I am heartened that a number of important changes are included in the substitute to Title I circulated by Senator Leahy. I commend the Chairman for working to improve this bill. I will have additional amendments to offer to make sure that the bill adequately protects the rights of innocent Americans who may get caught up in this new form of surveillance, but the substitute is a good start. And we must address the immunity question in a different way than the Intelligence Committee bill did.

Let’s not make the same mistake that we made with the Patriot Act. We passed that law without taking the time to consider its implications, and we didn’t do enough during the reauthorization process to fix it. As a result, three federal courts have struck down provisions of the Patriot Act as unconstitutional. And that is right back where we are going to end up if we don’t do our jobs and fix the Protect America Act.

Russ Feingold is the US Senator from Wisconsin.

 

Sen. Russ Feingold, D-Wis., is a member of the Senate Foreign Relations and Intelligence Committees.

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