FISA Update: A Few Other Notes

The Washington Post’s editorial, “FISA’s Fetters,” refutes the arguments of the ACLU and others who claims H.R. 6304, the FISA Amendments Act, will cause even further loss of U.S. citizens’ privacy.

The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas and — in an expansion of existing FISA protections — at Americans abroad. Purely domestic-to-domestic communications, even among foreigners here, would require a warrant as well. Intelligence agencies would be able to target and collect the communications of non-Americans “reasonably believed to be located outside the United States,” even if their phone calls or e-mails passed through or were stored in the United States. But the agencies are required to adopt procedures to “prevent the intentional acquisition” of purely domestic communications and to minimize the retention and dissemination of such information.

It is true, as Mr. Feingold suggested, that Americans’ communications with parties overseas could be monitored without any showing of cause — but it is true, as well, that such warrantless monitoring is permitted under the original FISA so long as the collection is done overseas. In addition to the extra protections for Americans abroad, the special FISA court would have to approve the targeting and minimization procedures involving domestic surveillance to ensure that they are consistent with the Fourth Amendment and the law. In addition, the measure prohibits so-called “reverse targeting” — using the authority to intercept foreign communications without an individual warrant if the real purpose is to spy on a “particular, known person” in this country. This hardly seems unfettered.

So a vote against the bill is a vote against these protections…

Senator Kit Bond (R-MO) provided a lengthy, valuable summary of the legislation on the Senate floor yesterday. His remarks are here.

The Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) also spoke at length, focusin on the immunity provisions. His remarks are here.

CQ Politics has a story. National Journal’s story is here.

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