Domestic Policy Briefing: FISA Act, 2008Date: 7/16/2008 12:00:00 AM
In passing the FISA Amendments Act of 2008 (H.R.6304), a measure overhauling the Foreign Intelligence Surveillance Act, the Congress has carried out the essential - and urgent - task of keeping current a system that, after functioning effectively for three decades, is falling behind the technological curve. At the same time, serious concerns have been raised as to the balance drawn by some aspects of the bill in protecting our national security interests and preserving civil liberties.
AJC has long been at the forefront of efforts to combat terrorism and protect national security while defending our constitutionally guaranteed civil liberties. FISA was established in 1978 precisely to balance the essential need to conduct foreign intelligence surveillance with the fundamental obligation to protect cherished Constitutional rights to privacy and due process. Yet the world has changed drastically over the last three decades, with technological capability and globalization raising a series of issues that were unimaginable 30 years ago. That is why, as noted above, revision of FISA’s provisions is imperative to keep the system current.
The FISA court was designed to approve and supervise implementation of any domestic surveillance program, a role the court remains uniquely suited to fill. America's security is dependent on our surveillance system adhering to uniform standards. All domestic electronic surveillance in the context of national security should be compliant with the FISA provisions.
Importantly, the provisions of the Act passed by Congress and signed by the President this month insist on FISA as the exclusive recourse when authorization is sought to conduct foreign intelligence surveillance on U.S. soil. Moreover, the legislation purports to allow for the interception of communications between people in the United States and persons abroad, or of Americans wherever situated, only with appropriate judicial supervision.
It is our earnest hope that the Act will operate to ensure the vigorous judicial review that is crucial to protecting the precious civil rights of all Americans, even as it protects our national security by providing an effective means to obtain warrants, as well as allows the Attorney General or the Director of National Intelligence to begin surveillance without judicial approval in specific emergency situations.
But we do not take anything for granted, and we regard with great seriousness the concerns raised by critics of the Act before and after its enactment. In order to ensure compliance with the provisions and procedures of FISA, as amended, as well as to assure that the Act’s provisions do indeed provide the kinds of safeguards against abusive surveillance attributed to it by its defenders, it is crucial that Congressional leadership conduct regular and intensive oversight. Moreover, rather than wait for provisions of the Act to sunset in 2012, Congress should begin immediately to revisit the operation and terms of this bill, and to revise this legislation at an
early date should that course appear appropriate.
America has a proud history of protecting civil rights and individual liberties, and these rights must be maintained. Simultaneously, we must preserve our national security and continue to diligently protect our country against terrorist threats. With appropriate oversight and judicial review, both of these two crucial values can - and must - be maintained.
Richard Foltin is AJC's legislative director.