FISA: Polling the Fiction Instead of the Fact

By January 23, 2008Briefly Legal, Communications

The ACLU is flacking a poll it hired done by the Mellman Group on the Administration’s proposals to revise the laws on intelligence surveillance of foreign communications. Not surprisingly, the survey produces the results the ACLU paid good money to get: The public is dead set against threats to the Constitution.

Trouble is, the Senate bill, S. 2248, poses none of the constitutional threats the group says it does. The ACLU has polled a veritable school of red herring.

The entire survey leaves the impression that the Foreign Intelligence Surveillance Act revisions will open up U.S. citizens to uncontrolled warrantless wiretaps. The lead question, at least as reported in the polling memo: “Should the U.S. government have to get a warrant from a court before wiretapping the conversations U.S. citizens have with people in other countries? OR Should the government be able to wiretap such conversations without a warrant from the court?”

But here’s the nonpartisan Congressional Research Service’s summary of the legislation:

Authorizes the Attorney General (AG) and Director of National Intelligence (DNI) to jointly authorize, for periods up to one year, the targeting (electronic surveillance) of persons located outside the United States in order to acquire foreign intelligence information, under specified limitations, including prohibiting an acquisition intentionally targeting a person reasonably believed to be outside the United States with the significant purpose of acquiring the communications of a specific person reasonably believed to be located in the United States, unless done in accordance with title I of FISA. Requires: (1) certain targeting and minimization procedures to be followed; and (2) Foreign Intelligence Surveillance Court (Court) review of such procedures. Allows the AG to authorize the emergency employment of an acquisition of foreign intelligence if the AG: (1) determines that an emergency situation exists with respect to the acquisition; (2) informs a Court judge of such determination; (3) submits to the Court, within 72 hours, a request authorizing such acquisition; and (4) follows appropriate minimization procedures. Requires such emergency acquisition to terminate within 72 hours, unless the Court determines that the person outside the United States is a foreign power or agent.

The FISA amendments are simply not about unfettered government power to listen to U.S citizens. The legislation is designed to allow monitoring of foreign communications that may pass through a U.S.-based communications system, a frequent occurrence in today’s world of global telecommunications. And, as you can see from the description above — much more detail in the linked document — any occurrences where a U.S. citizen is monitored abroad are strictly limited.

Given the context and nature of questioning, we’re surprised the ACLU/Mellman poll was only able to get a 63 percent “agree” response to the lead question.

We’re interested in this topic for a variety of reasons, especially the need to provide telecommunications companies immunity for having aided the government in the wake of the murderous attack on the United States on September 11, 2001. We believe citizens — including business — should be encouraged to help authorities monitor and seize America’s enemies.

We also don’t want to be murdered by terrorists. Funny how the ACLU didn’t poll that issue.

Join the discussion One Comment

  • Paul Dirks says:

    Leave it to the Association of Manufacturers to adamantly come out in favor of ignoring inconvenient laws. Independent of how one feels about any details of telecommunications survelliance, the bottom line remains that the way to address a flawed law is to change it, not to circumvent it repeatedly and then buy and pay for absolution after you’ve been caught.

    Having said that this sentence is just plain creepy:

    “We believe citizens — including business — should be encouraged to help authorities monitor and seize America’s enemies.”

    The Soviets were pretty keen on encouraging citizens to monitor their neighbors as well. They were only slightly more inclusive when it came to determining who their “enemies” were.

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