ACLU Rejects FISA “Compromise”

Washington, DC – Responding to a proposal from Senate Intelligence Ranking Member, Senator Christopher Bond (R-MO), the American Civil Liberties Union today criticized yet another attempt to gut the Foreign Intelligence Surveillance Act (FISA) and grant immunity to telecommunications companies. The proposal, which has the backing of the Bush administration, would allow for cases against the telecommunications companies to be held in a secret court and redundantly would restate the provision already in FISA making it the exclusive means to wiretap within the United States – after weakening FISA to allow the president’s warrantless wiretapping program to proceed virtually unfettered.

"Senator Bond’s proposal sounds like an unconstitutional wolf in sheep’s clothing," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "The administration has been running roughshod over the Constitution since it took office and any so-called compromise that has its stamp of approval simply cannot be trusted. The proposed immunity fix would be no better than a kangaroo court given the attorney general’s ability to dismiss cases simply because the administration had issued a sham certification. It’s ludicrous that the telecoms would be able to dismiss legitimate cases brought by their customers because they have a note from the president. Court review should look at whether the telecoms broke the law – and not clear them just because the president asked for the illegal actions. This proposal is not about compromise – it’s about giving the White House the green light to conduct domestic spying."

Despite the claims of court review of the pending telecom cases, nowhere in Senator Bond’s proposal does it say that the Foreign Intelligence Surveillance Court (FISC) can determine whether the surveillance was lawful. The attorney general would be the one to determine whether the certification was lawful with predictable consequences. Under this provision, if the government simply presented telecoms with a piece of paper, there’s a good chance the case against them will be dismissed.

The ACLU flagged the following problems with the draft as described by Sen. Bond:

• Prior Court Review. The court review could be short-circuited for "exigent circumstances." This would include situations whenever information would be lost if time taken to apply for an order from the FISA court. Applying for a court order inevitably takes some time – but no matter how brief the time needed, this exception would cut off court review, making this exception so broad it could eviscerate the rule.

• Probable Weak Standards for Exigent Orders. Currently under FISA, if the government issues an emergency order, and the court later finds it was improperly issued, the government must immediately stop surveillance and is prevented from using the information it collected. If this draft reiterates previous ones, these emergency collections can continue for months, and the government can keep and use everything it collected even if the court rules that there was no true exigent circumstance.

• Sham Immunity "Compromise." Even as described by the Bond summary, the telecoms appear to be able to get out of pending lawsuits by just showing the secret FISA court the illegal orders it received from the president. The court reviews only whether the companies received orders, not whether the orders were legally sufficient.

• Exclusivity Language. FISA already contains crystal clear exclusivity language, and reiterating it not a "compromise," but the status quo.

"Exclusivity cannot be a linchpin in this debate because it is already explicit within the statute," said Michelle Richardson, ACLU Legislative Counsel. "What’s the point of rewriting FISA to legitimize warrantless wiretapping then declaring it the exclusive means to do so? FISA was enacted to protect Americans from unwarranted and illegal government surveillance but, if Senator Bond gets his way, it will be rewritten as a blank check for domestic spying."