Photo: Electronic Frontier Foundation (EFF)

A House Judiciary subcommittee held an oversight hearing today on the FISA Amendments Act of 2008 (FAA). The hearing was convened to examine the law before it is reauthorized this year. There was little dispute that it should be reauthorized. The debate that occurred among congresspeople was instead focused on what reforms would be reasonable if Congress were to even consider adjusting the law before reauthorizing it.

The witnesses called to testify helped to ensure that the content of the hearing actually addressed substantive issues that stem from the FAA. Jameel Jaffer of the American Civil Liberties Union (ACLU), Marc Rotenberg of the Electronic Privacy Information Center (EPIC) and Kenneth Wainstein, who served as Homeland Security Adviser under President George W. Bush, each presented remarks and answered questions on the law.

Jaffer said the law permits dragnet surveillance of Americans’ international emails and phone calls and called for Congress not to reauthorize the FAA “without prohibiting dragnet surveillance of Americans’ communications and strengthening minimization requirements.” He also called for the law to not be reauthorized in its current form unless the “executive branch discloses basic information about how the law has been interpreted and used.”

Rotenberg made a similar recommendation and urged the committee to strengthen oversight by “improving public reporting requirements” and “strengthening the authority of the Foreign Intelligence Surveillance Act (FISA) court to review the government’s use of FISA authorities.”

Not surprisingly, Wainstein called for the FAA to be reauthorized and hesitated to suggest it needed any reform. Wainstein reminded the committee that, in his opinion, the FAA surveillance authority is important to counterterrorism efforts, Congress had limited this authority when it passed the FAA and the Executive Branch has implemented the law “to great effect and with full compliance with the law and the Constitution.” And he couched these points in an argument that highlighted his belief that there is a vast terrorist threat out there and curtailing this surveillance authority that allows for the collection of intelligence would only make it easier for terrorists to attack America.

In general, this seemed to be acceptable reasoning to most of the committee members—that any reform might be impossible because it already had been reformed and any more reform might give the “terrorists” an edge against America.

Jaffer sought to make clear in his testimony that the law, in its current form, grants the Executive Branch “unfettered Access” to the international communications of Americans. It does not require the Executive Branch to “specify the people, facilities, places, premises, or property” that the government wishes to monitor. It does not require the government to obtain “individualized warrants based on criminal or foreign intelligence probable cause, or even to make prior administrative determinations that the targets of government surveillance are foreign agents or connected in any way, however tenuously, to terrorism.” It does not require the Executive Branch to comply with “meaningful limitations.”

All of this power which the law grants the Executive Branch is shrouded in an extraordinary amount of secrecy. There is very little information that the public knows about how the Executive Branch interprets the law and how it has implemented it.

Surreal Moment: Congressman Asks ACLU Which Congressperson the NSA Wanted to Monitor

A surreal moment occurred during the hearing when Congressman Steve Cohen (D-TN) said he must have missed the New York Times article by Eric Lichtblau and James Risen on warrantless wiretapping by the National Security Agency (NSA) and asked about the member of Congress that was wiretapped. He thought Jaffer would know the member. Jaffer did not. Cohen asked why he was wiretapped. Jaffer proceeded to recount what this critical story revealed on how a congressman had been traveling overseas in the Middle East and the NSA had sought the authority to wiretap conversations.

Now, this story revealed that the NSA had ”intercepted private email messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year.” It noted the NSA had “ignored civil liberties safeguards built into” the law. Any member of Congress who takes oversight of surveillance authorities in this country seriously should have read this article or tried to become more informed on how the NSA was operating under the FAA. But Cohen apparently had no idea about the content, and the fact that he asked Jaffer three years after the story who the congressmember was that the NSA wanted to monitor says a lot about the Congress’ failure to conduct oversight.

“Almost Nothing Available” on FISA Court Approval of Applications

Cohen followed up these questions and asked, “How much is available for us to know about the dealings of the FISA court as far as applications denied, basis for denial? Is any of that available?” Jaffer answered: “Almost nothing is available. The only thing that is available is this raw number of applications filed with the FISA court and number of applications granted or denied. And even that number doesn’t break down between traditional FISA and the FAA. So, you don’t know how many programs of surveillance have been authorized. You don’t know how many have been approved by the court. You don’t know how broad those programs have been. You don’t know how many Americans have been wiretapped as a result. And you don’t know what’s been done with the communications that have been required.”

Additionally, the public does not know “how the Obama administration is interpreting this law because it has not disclosed even in redacted form the Office of Legal Counsel (OLC) memos.” The public also does not know how the FISA court has interpreted the law because the public does not have, even in redacted form, the FISA court’s opinions. Notably, Jaffer added, the Obama administration recognized a few years ago that these opinions needed to be released and a process was put in place to declassify FISA court opinions, but years later the public still has yet to see any opinions. Nothing has come out of this process.

Congresswoman Judy Chu (D-CA) asked Rotenberg, “How rigorous is this certification process of the Attorney General and the Director of National Intelligence regarding the authorization of surveillance program under Title VII of FISA? Has the FISA court ever rejected an application of Title VII?” Rotenberg told Chu it was a very good question and said he “couldn’t answer because the information is not made available to the public.” He said there are “statutory provisions” that are made available to the House Judiciary Committee. The only information made available to the public about the use of the FAA is a two-page letter that’s sent at the end of April every year from the Attorney General to the Speaker and to the President of the Senate and this is what we know about the use of the FISA authority. This is why EPIC recommends making more information available.

Both Bush, Obama Have Prevented US Citizens from Challenging the Law

Photo: Jameel Jaffer of the ACLU testifies at the House hearing

The overwhelming secrecy allows the Executive Branch, which currently consists of the Obama administration, to shield the law from scrutiny. It makes it virtually impossible for any American, who fears their communications are being unconstitutionally monitored, to challenge the law in court. It also leads to suspicion about how the authority is being interpreted and used; and either one convinces themselves that the Executive Branch is occupied by people who should be trusted with this power, or one takes the vagueness and lack of public information to indicate gross abuse and misconduct is happening that is being concealed.

Congressman Jared Polis (D-CO) brought up the fact that many proponents of the FAA argue the FISA court can deal with any issues that stem from the FAA. He asked Jaffer whether the FISA court has been effective in administering the FAA and if the ACLU had any specific recommendations on how to improve the ability of judges to administer the FAA. Jaffer responded to the question by noting, again, that it is difficult to make a recommendation because the public does not know what is going on even in the most general terms with the FISA court. Additionally, no federal court has weighed in on the constitutionality of the FAA, which provides the Executive Branch with insulation to continue widespread surveillance with great impunity.

As Jaffer explained, no court has found the FAA to be unconstitutional because the Bush and Obama administrations have both argued that the only people who can challenge this surveillance are people who can show their communications have been monitored. Obviously, nobody can show that their own communications have been monitored because that’s not information that the administrations will release. This means that citizens are in a situation where the most “far-reaching surveillance statute” ever enacted by Congress is beyond the reach of the courts.

Conyers: “We Don’t Know and They Can’t Tell Us” How Many Americans Subjected to FAA

Congressman John Conyers (D-MI) informed Rotenberg, ”We’ve been told that we cannot even tell how many people are being subjected to this process located in the United States. We don’t know and they can’t tell us. And I think we could get a little bit closer. There could be some reasonableness there to give.” He added, “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. We don’t know and we can’t be told basic information like this.”

Indeed, Conyers rightfully raises concern. This vagueness should lead one to question any and all executive powers claimed by Presidential administrations. It is precisely this vagueness that led a federal judge to recently decide that activists and journalists that brought a lawsuit against the Homeland Battlefield Act in the National Defense Authorization Act (NDAA) had standing to bring a lawsuit because they demonstrated “actual” as well as “imminent and particularized invasion of legally-protected interests.” Government attorneys in arguments would not give specific examples when asked specific questions about how the indefinite detention authority might be interpreted or used and, as a result, Judge Katherine Forrest found the plaintiffs had reason to be afraid or concerned about the law. The Clapper v. Amnesty et al case the ACLU is bringing is similar in that the ACLU argues the FAA could be used to violate the privacy of human rights advocates, journalists, and lawyers who communicate with clients or subjects who live outside the United States.

Re-Authorization Imminent Especially in an Election Year

The Obama administration intends to ensure the FAA is reauthorized this year.  They will put an immense amount of pressure on Congress to not make adjustments because that could disrupt the continuity of operations; and, if you ask President Obama, the law already has oversight mechanisms that were built into the law.

Attorney General Eric Holder publicly celebrated the importance of the law in his speech at Northwestern University in March on the President’s authority to kill terror suspects abroad without judicial process. He praised the Justice Department’s oversight of the intelligence community and called for the FAA to be reauthorized. Two months later, FBI Director Robert Mueller testified before a Senate committee hearing. Senator Dianne Feinstein (D-CA) did not question whether the law should be reauthorized and simply asked Mueller to explain why it is a necessary tool for getting “terrorists.”

Today, few openly expressed the importance of reforming the law. However, Congressman Conyers suggested there be more information made available adding, “We want to improve the laws. I know you [Rotenberg] were very generous in your complements about the Congress acting on this originally. But, for goodness sake, just to okay it again because we did it before—Couldn’t we improve it a little bit?”

It is an election year. No congressperson wants to be seen as weak on terrorism or national security. Wainstein repeatedly suggested any transparency would reveal sensitive information that the “terrorists” could use to escape surveillance. This is a powerful authoritarian argument for warrantless surveillance. Not one congressperson in favor of reforming the FAA wants to reveal intelligence collecting methods or sensitive information on who exactly is being monitored. But defenders of government secrecy would argue every detail pertaining to FAA could reasonably be considered something that shows how the government goes about spying on terrorists.

Politically, no Democrat and especially no Republican is prepared to argue there needs to be privacy protections when it comes to grand surveillance powers that have been granted. All politicians are guaranteed to run from defending privacy in the same way that they quickly stopped arguing that the Guantanamo Bay prison needed to be closed when Republicans effectively seized the narrative and started shouting that releasing the “terrorists” would lead to dangerous people being on the loose who might attack America one day. Democrats were also arguing terror suspects should be tried in federal courts, but the rancor from the GOP was too much and President Obama decided to try them in a separate, parallel and second-class legal system—before military commissions.

“A vast apparatus for intercepting—and retaining indefinitely—American communications on a mass scale,” as Julian Sanchez points out, currently exists. It is protected by incredible secrecy. Like the Obama administration’s claimed legal authority to kill people with drones, the public is expected to trust the government. Even if the public doesn’t trust the government, they are urged to fear an alternative universe where government would not have the ability to engage in warrantless surveillance and “terrorists” would exploit America’s weakness and attack the country. It is unfortunate that people like Jameel Jaffer and Marc Rotenberg can make sober and well-reasoned arguments and yet the national security state will deploy fear to ensure that it can continue to operate with impunity and without scrutiny. The reality is Top Secret America does not want the public to know the true scale of how much surveillance is actually taking place in and outside of the United States. And President Obama has a reputation as Warrior President to uphold so he is not about to give arguments by civil liberties advocates too much credence by addressing or repeating them on the campaign trail.