At a House hearing on Thursday, members of Congress and representatives of two leading privacy rights groups concluded that they still know virtually nothing about a secret court set up by the Foreign Intelligence Surveillance Act (FISA), originally intended to prevent the worst abuses of the Nixon administration from ever occurring again.
Instead of preventing wanton wiretapping of Americans for political reasons, witnesses at a House Judiciary Committee hearing on Thursday explained that the FISA court has become an informational black hole, asking members of Congress to refuse to renew the FISA Amendments Act (FAA), passed during the Bush administration as a means of protecting officials and telecommunications companies from lawsuits and prosecution.
Now the FAA is up for a five-year extension, gaining the approval of the Senate Intelligence Committee last Tuesday. Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) were the only dissenters in a 13-2 vote.
Since the FAA passed act passed, the FISA court has continued to operate in complete secrecy with greatly enhanced authority to approve dragnet-style surveillance, yet it has released less than two pages of information on their activities every year since, in accordance to an “oversight” rule added to the bill by Democrats.
“In our view, these means of public oversight don’t match the authorities,” Marc Rotenberg, president of the Electronic Privacy Information Center, told the Subcommittee on Crime, Terrorism, and Homeland Security, noting that public watchdogs don’t even know if the FISA court ever rejects surveillance requests.
Joining Rotenberg was Jameel Jaffer, president of the American Civil Liberties Union, and FAA co-author Kenneth L. Wainstein, an attorney.
Some of the Republican members seemed eager to challenge the witnesses. Rep. Dan Lungren (R-CA) specifically targeted ACLU President Jameel Jaffer’s contention that the FISA court routinely approves “dragnet” style surveillance requests, saying that his claim “is based on lack of information in the public domain.”
“The statute itself authorizes that kind of dragnet surveillance,” Jaffer said. “And the Obama administration has not disagreed with that.”
Responding to Rep. Jared Polis (D-CO) later in the hearing, Jaffer added that the Obama administration refuses to admit whether it engages in bulk collection of Americans’ communications, which is prohibited, whereas the collection of international communications is legal.
The trouble with making such an acknowledgement, Wainstein told the subcommittee, it is impossible to say whether one communication or another is specifically American, but that it would be possible to identify specific individuals based upon the content of their communications.
That means Americans’ communications have absolutely been subject to unlawful surveillance thanks to the FAA, Jaffer said.
“We’ve been told that we can’t even tell how many people are being subjected to this process located in the United States, and that we don’t know and they can’t tell us,” Rep. John Conyers (D-MI) said. “I think we can get a little bit closer. There can be some reasonableness. It’s this kind of vagueness that creates in those of us in the Congress, suspicions that are negative rather than suspicions that are positive.”
In his prepared testimony (PDF), Jaffer explains that the ACLU would like to see a more narrow definition for what may trigger surveillance of Americans’ communications, and that other steps should be taken to prevent dragnet wiretapping and expose more details about the court’s inner-workings.
“The ACLU is ready to work with Congress to develop a provision that respects constitutional rights while preserving the executive’s legitimate interest in monitoring communications of suspected terrorists and foreign agents,” he said.
If Congress does not move to alter the FAA before extending it, which is likely, the Supreme Court still might. The nation’s highest judicial authorities recently agreed to hear a case brought by the ACLU and other rights groups, filed just days after the FAA passed in 2008.
That case is moving forward thanks to a unanimous decision last year by the Second Circuit Court of Appeals, which found that the nation’s surveillance programs could be challenged on the grounds that their existence causes journalists, attorneys and human rights groups to fear that their privileged communications may be intercepted, thereby infringing upon the freedom of speech.
“The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities,” Jaffer said in a prepared statement. “The constitutionality of the government’s surveillance powers can and should be tested in court. We are hopeful that the Supreme Court will agree.”
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