PRESS RELEASE · December 19, 2008 ·
Reporters Committee files brief in FISA eavesdropping suit
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The Reporters Committee for Freedom of the Press filed a brief in federal district court in Manhattan today asking the court to find that the FISA Amendments Acts of 2008 violates the First Amendment rights of journalists to gather news.

The FISA Amendments Act, signed into law this summer, amends the Foreign Intelligence Surveillance Act to allow the government to intercept communications between U.S. citizens and people abroad without first obtaining a judicial warrant. The American Civil Liberties Union sued the government, in Amnesty International v. McConnell, on behalf of a group of journalists, authors, attorneys and activists, arguing that the law violates the constitution.

The Reporters Committee argued in a friend-of-the-court brief that the law specifically violates the First Amendment rights of journalists by eliminating the ability for journalists and their international sources to communicate confidentially. The law also violates the constitutionally protected role of the news media as a watchdog on government action.

“The FISA Amendment dramatically reduces the ability of American reporters to inform their readers, viewers and listeners about valuable international news,” said Reporters Committee Executive Director Lucy Dalglish.

H.R. 6304, THE FISA AMENDMENTS ACT OF 2008 (6/19/2008)
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The ACLU recommends a no vote on H.R. 6304, which grants sweeping wiretapping authority to the government with little court oversight and ensures the dismissal of all pending cases against the telecommunication companies. Most importantly:

• H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.

• H.R. 6304 permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.

• H.R. 6304 contains a general ban on reverse targeting. However, it lacks stronger language that was contained in prior House bills that included clear statutory directives about when the government should return to the FISA court and obtain an individualized order if it wants to continue listening to a US person’s communications.

• H.R.6304 contains an “exigent” circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to start a spying program and wait to go to court for up to 7 days every time “intelligence important to the national security of the US may be lost or not timely acquired.” By definition, court applications take time and will delay the collection of information. It is highly unlikely there is a situation where this exception doesn’t swallow the rule.

• H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime.

• H.R. 6304 ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.

• Members of Congress not on Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director of National Intelligence, and Inspector General.

Safe and Free

H.R. 3773: FISA Amendments Act of 2008

S. 2248: FISA Amendments Act of 2008

President Bush Signs H.R. 6304, FISA Amendments Act of 2008
Rose Garden
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THE PRESIDENT: Thank you. Welcome to the Rose Garden. Today I'm pleased to sign landmark legislation that is vital to the security of our people. The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home. The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people.

President George W. Bush delivers remarks prior to signing the FISA Amendments Act of 2008 Thursday, July 10, 2008, in the Rose Garden at the White House. White House photo by Chris Greenberg Members of my administration have made a vigorous case for this important law. I want to thank them and I also want to thanks the members of the House and the Senate who've worked incredibly hard to get this legislation done. Mr. Vice President, welcome.

Respect the members of the Senate and the House who've joined us -- Senate Republican Whip Jon Kyl; John Boehner, House Republican Leader; Roy Blunt, House Republican Whip. I do want to pay special tribute to Congressman Steny Hoyer, House Majority Leader, for his hard work on this bill. I thank so very much Senator Jay Rockefeller, Chairman of the Senate Select Committee on Intelligence, and Senator Kit Bond, Vice Chairman, for joining us. I appreciate the hard work of Congressman Silvestre Reyes, Chairman of the House Permanent Select Committee on Intelligence, and Congressman Pete Hoekstra, Ranking Member. I also welcome Congressman Lamar Smith, Ranking Member of the House Judiciary. I thank all the other members of the House and Senate who have joined us. I appreciate your very good work.

I welcome Attorney General Michael Mukasey, as well as Admiral Mike McConnell, Director of National Intelligence. I appreciate other members of the administration who have joined us. I want to thank the congressional staff who are here, and all the supporters of this piece of legislation.

Almost seven years have passed since that September morning when nearly 3,000 men, women and children were murdered in our midst. The attack changed our country forever. We realized America was a nation at war against a ruthless and persistent enemy. We realized that these violent extremists would spare no effort to kill again. And in the aftermath of 9/11, few would have imagined that we would be standing here seven years later without another attack on American soil.

The fact that the terrorists have failed to strike our shores again does not mean that our enemies have given up. To the contrary, since 9/11 they've plotted a number of attacks on our homeland. I can remember standing up here -- I receive briefings on the very real and very dangerous threats that America continues to face.

One of the important lessons learned after 9/11 was that America's intelligence professionals lacked some of the tools they needed to monitor the communications of terrorists abroad. It is essential that our intelligence community know who our enemies are talking to, what they're saying, and what they're planning. Last year Congress passed temporary legislation that helped our intelligence community monitor these communications.

The legislation I am signing today will ensure that our intelligence community professionals have the tools they need to protect our country in the years to come. The DNI and the Attorney General both report that, once enacted, this law will provide vital assistance to our intelligence officials in their work to thwart terrorist plots. This law will ensure that those companies whose assistance is necessary to protect the country will themselves be protected from lawsuits from past or future cooperation with the government. This law will protect the liberties of our citizens while maintaining the vital flow of intelligence. This law will play a critical role in helping to prevent another attack on our soil.

Protecting America from another attack is the most important responsibility of the federal government -- the most solemn obligation that a President undertakes. When I first addressed the Congress after 9/11, I carried a badge by the mother of a police officer who died in the World Trade Center. I pledged to her, to the families of the victims, and to the American people that I would never forget the wound that was inflicted on our country. I vowed to do everything in my power to prevent another attack on our nation. I believe this legislation is going to help keep that promise. And I thank the members who have joined us. And now it's my honor to sign the bill.

(The bill is signed.) (Applause.)

Senate Approves Telecom Amnesty, Expands Domestic Spying Powers
By Ryan Singel, WIRED, July 09, 2008 | 2:13:49 PM
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The U.S. Senate overwhelmingly voted Wednesday to grant retroactive amnesty to the telecoms that aided the President Bush's five-year secret, warrantless wiretapping of Americans, and to expand the government's authority to sift through U.S. communications, handing a key victory to the Bush administration.

The Democrats' presumptive presidential nominee Barack Obama (D-Illinois) voted for the final bill, despite intense lobbying by supporters who used Obama's own online organizing technology to try to hold him to his promise to fight any bill that included amnesty. New York Sen. Hillary Clinton, Obama's former rival for the Democratic presidential nomination, voted against the bill.

The 68 to 29 vote puts an end to more than a year of debate over whether the government should be able to collect millions of e-mails and phone calls daily from U.S.-based communication switches without any probable cause. It also answers whether Congress believes the nation's telecoms and president had a duty to follow the rules set out in 1978 Foreign Intelligence Surveillance Act, which was passed after the abuses of the 1950s and 60s.

If the FISA Amendments Act survives constitutional challenge, it dooms the dozens of anti-wiretapping lawsuits filed against the nation's telecoms, by ordering the judge in charge of the cases to dismiss them if the telecoms can prove the government asked them to help out.

Those suits seek billions in damages for alleged massive violations of communication privacy laws, and seek to prevent companies from participating again in the future without proper court orders.

Congress's wiretapping debate started in earnest last spring after the nation's secret spying court struck down a version of the president's secret surveillance program. That led Bush and his surrogates in the Justice Department and intelligence community to push Congress to grant it powers that the administration claimed for itself, until it was forced to submit the secret wiretapping program to a court in January 2007.

Senator Christopher Dodd, D-Connecticut, who nearly single-handedly derailed a vote on a similar bill in December, took the floor one last time Wednesday morning, imploring his fellow senators to let the courts continue without interference. He also offered hope to immunity foes by predicting of the measure will be struck down in court.

"Opponents of retroactive immunity can take solace in knowing that it will still ultimately be the judiciary that decides whether any of this would have passed muster with the framers," Dodd said. "I can hardly see how it would have."

Senator Kit Bond (R-Missouri), the top Republican on the Senate Intelligence Committee, argued that the bill has plenty of court oversight, and that the nation's telecoms shouldn't be punished for coming to the aid of the country.

"It is unfair to use telecoms as the punching bag to get at the administration," Bond said, arguing that anti-wiretapping suits should be filed against the government, not the telecoms. Bond failed to note the significant legal hurdles to suing the government, including the need to prove standing and overcome sovereign immunity privileges.

The amnesty debate spilled over into the presidential campaign of 2008, after McCain's campaign temporarily appeared to grow tougher on the nation's telecoms.

For his part, Obama sparked a grassroots rebellion among his supporters in the last two weeks for backing off a promise to vote against any bill that contained amnesty for telephone and internet companies that gave the government access to customer records and communications with valid court orders.

An amendment sponsored by Dodd to strip immunity from the bill failed by a vote of 32 to 66, a tally nearly identical to a vote on a similar amendment in February that failed 31 to 67. The Senate also voted down an amendment from Sen. Jeff Bingaman (D-New Mexico) that would have paused both the lawsuits and the amnesty provisions until after a Inspectors General report to Congress revealed what exactly happened.

Senator Arlen Specter (R-Pennsylvania) stressed that Congress was violating the separation of powers by interfering with the courts.

"This may be a historical embarrassment," Specter said Wednesday morning on the Senate floor. "Everyone knows we don't know what the program did, but here we are giving immunity to the telephone companies."

President Bush is expected to quickly sign the bill -- which was passed by the House in June.

The Electronic Frontier Foundation, a San Francisco non-profit rights groups at the center of the lawsuits against the telecoms, plans to challenge the legality of the amnesty provision, arguing that Congress overstepped its authority by messing with the courts.

Despite the landslide loss, the ACLU's Caroline Fredrickson took solace in the fact that the fight took so long, and that individuals around the country organized around an issue that many said was too esoteric.

"I think that says something," Fredrickson said. "Even though we lost at the end of the day, there has been a re-awakening in the American public of a feeling that while we are fighting the so-called 'War on Terror,' we need to protect our civil liberties and the separation of powers."

See Also:

* Amendment Would Put Spy Lawsuits, Amnesty On Hold Pending ...
* Anti-Warrantless Spying Decision Colors Telecom Amnesty Debate
* Telecom Amnesty Foes Lobby Obama Using Obama Tech
* Telecom Amnesty Flip-Floppers Got More Telecom Dollars