June 22, 2008

MEMORANDUM

TO: INTERESTED PERSONS

FROM: MORTON H. HALPERIN

RE: FISA LEGISLATION

This memorandum seeks to provide some background and an assessment of the FISA legislation passed on June 20, 2008 by the House. It presents my personal assessment.

On balance, I believe that this bill is deserving of support as the best possible bill that can pass now and as one that provides important civil liberties protection beyond the current law and the Senate passed bill.

At the same time there are significant flaws in the bill including the grant of immunity to the service providers and the limited protections to prevent surveillance of persons in the United States. Congress should commit to reviewing the procedures under the law and enacting amendments which improve civil liberties protection when a President is prepared to support such amendments.

Attention in the public debate and news coverage of the legislation has focused on the issue of whether Congress should provide immunity to telecommunications companies that cooperated in warrantless surveillance programs since 9/11. However, in my view, the more important issues relate to how electronic surveillance will be conduct in the future. Therefore, I discuss those issues first before examining the immunity question.

The Basic Issue

Any understanding of the debate over Title I of the legislation, dealing with future rules for surveillance, must start with an understanding of the technological change which led to the request for the legislation.

As FISA was originally drafted it required a warrant based on individualized probable cause that the target was an agent of a foreign power if an acquisition occurred from a wire in the United States and any party to the communication was in the United States. Because of the way technology has evolved most email and text messages and many phone conversations from around the globe pass through the United States and are most easily acquired here.

The government’s initial position was that as long as the person being targeted was overseas it did not need a warrant to acquire the communications. Once the FISA court ruled otherwise, the Administration urgently sought legislation to permit such acquisitions with no court supervision. It proposed that the definition of “electronic surveillance” in FISA should be modified so that it excluded acquisitions from a wire in the United States if the target of the surveillance was overseas,. With this proposed change in the law the Intelligence Community would have been able to intercept all such emails and phone conversations in the United States even if one party was in the United States. The FISA court would play no role in the process.

The legal argument presented by the administration was that non-Americans overseas were not protected by the Fourth Amendment to the constitution. Therefore, it could intercept their communications with no limits. Moreover, it argued, that persons in the United States had no constitutional right to object to the interception of communications they had with persons overseas if the government was targeting the person overseas.

Many civil libertarians have a different view of the Fourth Amendment. They argue that the government must secure an individualized warrant based on probable cause that the target is an agent of a foreign power if a person in the United States is a party to the communication. Thus, they object to the basic premise which underlines the new procedures established in Title I of the bill.

There are serious legal and policy arguments on both sides of this question . However, this issue has received very little attention in the congressional debate. This is because most members of congress who were fully briefed on the program came to believe that the government needed the authority to intercept these communications without individual warrants. Thus they focused on getting the maxim possible civil liberties protection.

The resulting bill reflects those efforts. In the end the Administration agreed to the compromise because it incorporated the basic principle of future acquisitions without individual warrants if the target is overseas, and because it provides immunity to service providers who cooperated in the past. Members of Congress accepted the compromise as the best possible outcome given the views of the Bush Administration and because they were able to incorporate important protections for civil liberties.

Civil Liberties Protections in the Legislation

Perhaps the easiest way to understand the legislation is to delineate the ways in which it deviates from the approach of taking such acquisitions entirely out of FISA and improves on the Senate passed bill or the basic FISA legislation.

The Definition of Electronic Surveillance is not changed. The Senate passed bill purported to change the definition of “electronic surveillance” in FISA. This proposed amendment to FISA was not included in the House passed bill. Thus, except as otherwise provided in the bill, all of the procedures of FISA will continue to apply to acquisitions from a wire in the United States if either party is in the United States. This is a very important change which eliminate the fear that the new program authorized by the bill would lack some of the basic protections of US persons included in the initial FISA legislation.

The FISA Court Plays a Major Role in Supervising the Surveillance. The House passed bill makes it clear that the FISA court has an important role in supervising the surveillance and that the Court, except in “exigent circumstances,” which I discuss below, must approve the procedures governing the surveillance before it can begin.

The FISA court must examine and approve procedures developed by the government to deal with two three issues: (1) whether the procedures adopted by the Intelligence Community are reasonably designed insure that the targets of the surveillance are non-US persons located outside of the United States; and (2) minimization procedures to limit the acquisition and dissemination of information regarding US persons; and (3) guidelines for preventing so called “reverse targeting” that is targeting people abroad when the real purpose is to acquire the communications of a person in the United States or a US person. The Court retains continuing jurisdiction of these and other issues and must determine whether the procedures are consistent with the Fourth Amendment as well as the statute.

The provisions aimed at preventing reserve targeting while an improvement over the Senate passed bill are far less stringent than those in the previous House passed bill. This is an area which requires continuing and vigorous oversight by the Congress and where the procedures should be amended by further legislation as soon as that is possible.

The only exception to prior approval by the FISA court of these procedures is if the Attorney General and the Director of National Intelligence determine that “exigent circumstances exist because, without immediate implementation of an authorization .. intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order.” In that case the government must go to the court within 7 days. Critics of this provision argue that it somehow creates a loophole which will always enable the government to begin a surveillance without first going to court.

It is not clear on what basis they have concluded that this language is less restrictive that the provision in earlier versions which provided that a surveillance could begin without a court order if the Attorney General determined that there was an “emergency.” Floor statement in the House by supporters of the bill noted that the drafters and the Intelligence Community agreed that this provision will be used rarely and only in unexpected circumstances. It would be important to have a colloquy in the Senate which emphasized this and spelled out clearly that the legislation requires the Administration to secure FISA court approval of the necessary procedures before starting a surveillance in all but the most unusual situation.

(The provisions aimed at preventing so-called “reverse targeting,” that is targeting abroad when the real purpose is to acquire the communications of a person in the United States are an improvement over the Senate-passed bill but are remain far less stringent that those in the previous House passed bill. This is an areas which reqires continuing and vigorous oversight by the Congress and where Congress should legislate as soon as possible)

There is new protection for Americans oversees. For the first time the administration must get approval from the FISA court to conduct surveillance of any kind of an American abroad if it would require a warrant if conducted in the United States. This is a major new protection which had been included in the Senate passed bill. It justifies, in my view, the assertion that at least in this way the bill provides stronger protection for Americans than the original FISA bill did.

Congressional Oversight is strengthened. For the first the legislation makes clear that the House and Senate Judiciary Committees as well as the Intelligence committees must be fully informed about the conduct of the surveillance programs authorized by the legislation. There are also specific requirements to provide information on a regular basis to the four committees.

Exclusive Means. The legislation contains a new section which underscores the requirement that the FISA rules be followed any time the government seeks to conduct electronic surveillance as defined in FISA.

Review of Past Warrantless Surveillance Programs. A new and important provision provides for reviews by all of the relevant Inspectors General of all of the warrantless surveillance programs conducted by the President since 9/11. There will be both an unclassified and classified versions of the report provided to all four committees.

Immunity for Service Providers.

In my view the service providers who assisted the government in violation of FISA should not be granted immunity. The original FISA legislation clearly provided that the companies were only to cooperate pursuant to the provisions of the law. The service providers should have had no reasonable doubt that the requests from the administration to provide support outside of the statute was both illegal and unconstitutional. The current court cases should be allowed to proceed unhindered by the Congress.

The House passed bill while providing potential relief to the service providers does leave greater discretion with the District Court judge hearing the consolidated cases and certainly permits a constitutional challenge to the immunity provisions in that court. It also provides no relief for government officials who participated in the program.

Given that no agreement on legislation was possible without providing relief to the service providers, the key issue, in my view, was to do everything possible to send a clear message to the service providers that congress would not grant any such relief in the future. This has been done and should be reinforced during the Senate debate.

The report of the Senate Intelligence Committee accompanying its bill, which provided relief, stated that the congress views this as a one time action justified by the trauma of 9/11. The new exclusivity and immunity provisions in the legislation send a clear message to the service providers that they will have no immunity if they cooperate with the government outside the procedures of the legislation.

One of the purposes of the lawsuits was to learn more about the warrantless surveillance programs. There was always real doubt that the lawsuits would succeed in that objective given a variety of hurdles in addition to immunity including the State Secrets privilege. This objective will be more effectively accomplished by the requirement of the new Title II providing for the review by IGs of all previous warrantless surveillance and the release of a public report.