FISA Renewal Hearing Reveals Deep Divisions on House Judiciary Committee
Republican and Democratic members of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security disagreed sharply Thursday on whether the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 adequately protects U.S. citizens from federal wiretap surveillance of their email and other electronic communications. The subcommittee got very different views of the act and the protections it offers from experts called in to testify. The 2008 amendments are set to expire at the end of the year if there is no action by Congress.
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"We have a duty to ensure the intelligence community can gather the information they need to protect our country and its citizens,” said subcommittee Chairman James Sensenbrenner, R-Wis. Sensenbrenner joked that the hearing was “a rare chance to see bipartisanship in action” after other members offered their opening statements. “You have the Republicans supporting the Obama administration and the Democrats criticizing the Obama administration,” he said. “I would hope that everybody in the room duly notes that.”
Rep. Dan Lungren, R-Calif., his state’s former attorney general, noted that FISA does have checks, with the use of the act closely monitored by the FISA Court, made up of federal district court judges.
"Some gaping holes were left in what is required to protect the privacy of the United States citizens,” said subcommittee Ranking Member Bobby Scott, D-Va. “Americans have the right to feel, as well as be, free and secure … from unwarranted government intrusion and I'm concerned that the FAA [FISA Amendments Act] does not fully meet that standard.” The government “should not be surveilling Americans … without some significant oversight,” Scott said. The FISA Court “may be doing a good job within its authority, but it operates in secrecy.”
"I come to this hearing disturbed by how little we know and how much we need to know,” said Rep. John Conyers, D-Mich., ranking member of the full committee. “How do we make sure that, quite frankly, that FISA is not out of control? At this point we don’t have any way of knowing that.” Conyers said the committee needs to hear directly from the federal official in charge of FISA -- Director of National Intelligence James Clapper. “We want to talk to the director, publicly or privately,” he said. “I haven’t had that opportunity yet."
Sensenbrenner said at the close of the hearing that members of the committee will get a classified briefing next week by Clapper and a still-to-be named Justice Department official, to answer their FISA questions. “I would encourage the members to come to it and re-ask the questions that they don’t think they got an adequate answer to today,” he said.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, told the panel Congress should change FISA to mandate more disclosure of wiretaps conducted under the act, similar to the Administrative Office of the U.S. Courts’ annual report on federal wiretaps for other criminal investigations. “It provides a great deal of information about the costs, about the effectiveness, about the jurisdictions that are using wiretap authority, as well as the number of incriminating and nonincriminating communications that are gathered,” Rotenberg said. The report doesn’t offer information on individual wiretaps, he said. “It does, however, provide a basis for the public and for the Congress to evaluate the effectiveness and the use of electronic surveillance in criminal investigations.” Rotenberg noted that the American Bar Association has recommended that FISA be changed to require greater accountability. “There is simply too little known today by the American public about the circumstances under which FISA authorities are used,” he said.
The FAA should not be reauthorized until the government discloses more about how the act is used, said Jameel Jaffer, deputy legal director of the American Civil Liberties Union Foundation. The effect of FISA “is to give the government nearly unrestricted access to Americans’ international phone calls and emails,” Jaffer said. “It permits the government to acquire those communications without requiring it to specify the people or facilities to be monitored, with requiring it to comply with meaningful limitations on retention, use and dissemination.”
But Kenneth Wainstein, a former Justice Department official and homeland security adviser to President George W. Bush, called on the committee to reauthorize the FISA amendments. “While we have certainly weakened them in many ways, our terrorist adversaries are still intent on inflicting damage and death on the United States and its people,” he said. “Now is not the time to rest on our accomplishments.” Members of the FISA Court take their oversight responsibility “very seriously,” Wainstein said. “They ask the tough questions.”