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| February 6th, 2008 |
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Media Contact(s): Jared Whitley (202) 224-5251 |
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OVERLY AGGRESSIVE JUDICIAL OVERSIGHT BY FISC COULD HARM NATIONAL SECURITY
Hatch Opposes FISA Amdt #3920 |
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Washington - Sen. Orrin G. Hatch today offered the following remarks in support of legislation to modernize the Foreign Intelligence Surveillance Act (FISA). Hatch opposes the partisan amendments that have been tacked onto the FISA bill as approved 13-2 by the Intelligence Committee in October 2007.
I rise to express my opposition to the Whitehouse Amendment number 3920.
My opposition to the Whitehouse Amendment is related to the totality of this bill. This is an amendment which greatly expands the Foreign Intelligence Surveillance Court’s (FISC) jurisdiction. Keeping in mind that the bill before us already expands FISC jurisdiction of foreign collection to an unprecedented historical level, this amendment tips the balance and could lead to real life instances of intelligence analysts’ operation decisions being second-guessed by the court.
The original approach and goals of this legislation were simple and two-fold.
Goal Number 1 -- Wire communications taking place in 2008 should receive the same treatment as radio communications taking place in 1978, and
Goal Number 2 -- Our intelligence community’s sources and methods should not be subject to exposure by litigation brought about by hearsay and innuendo.
I’m pleased the legislation before us provides more protections to American citizens than any intelligence bill in my recent memory, and certainly more than the original FISA law.
Over the last several months, a great deal of attention has been given to the FISC. The FISC was created by the original FISA law, and its jurisdiction was extremely limited. Here’s what the FISC was created to do:
[CHART] "A COURT WHICH SHALL HAVE JURISDICTION TO HEAR APPLICATIONS FOR AND GRANT ORDERS APPROVING ELECTRONIC SURVEILLANCE."
This jurisdiction is purposefully limited, as the task of reviewing applications to intercept electronic communications is among the most important tasks our government can do to protect our country and citizens. Terrorists have to communicate to plan and execute attacks, and our interception of these communications is paramount to stopping the next attack.
The jurisdiction of the FISC is greatly expanded by this legislation. Combined with other provisions in this bill, the new oversight created is prevalent and comprehensive. Since the breadth of this new oversight is critical when determining the necessity of the amendment we are debating, let’s look at the new oversight created by this legislation:
[CHARTS] "FOR THE FIRST TIME, THE FISC WILL REVIEW AND APPROVE MINIMIZATION PROCEDURES USED BY THE INTELLIGENCE COMMUNITY."
NUMBER TWO "FOR THE FIRST TIME, THE FISC WILL REVIEW AND APPROVE TARGETING PROCEDURES USED BY THE INTELLIGENCE COMMUNITY. FISC WILL DETERMINE WHETHER THE PROCEDURES ARE REASONABLY DESIGNED TO ENSURE TARGETING IS LIMITED TO PERSONS OUTSIDE THE U.S."
AND NUMBER THREE, "FOR THE FIRST TIME, A COURT ORDER WILL BE REQUIRED TO TARGET U.S. PERSONS REGARDLESS OF WHERE THEY ARE IN THE WORLD."
AND NUMBER FOUR, "FOR THE FIRST TIME, THE ATTORNEY GENERAL AND THE DIRECTOR OF NATIONAL INTELLIGENCE WILL BE REQUIRED TO ASSESS THE INTELLIGENCE COMMUNITY'S COMPLIANCE WITH COURT APPROVED TARGETING AND MINIMIZATION PROCEDURES. THESE ASSESSMENTS MUST BE PROVIDED TO THE FISC AND CONGRESSIONAL INTELLIGENCE COMMUNITIES."
AND, NUMBER FIVE, "FOR THE FIRST TIME, CONGRESS IS CREATED STATUTORILY REQUIRED INSPECTOR GENERAL SEMIANNUAL ASSESSMENTS OF COMPLIANCE WITH COURT APPROVED TARGETING AND MINIMIZATION PROCEDURES. THESE ASSESSMENTS MUST BE PROVIDED TO BET THE CONGRESSIONAL INTELLIGENCE COMMITTEES."
Given the staggering amount of new oversight, we should be very careful when creating mechanisms which could negatively impact our intelligence analysts, particularly when these mechanisms provide no benefit to the privacy of American citizens.
The intelligence community has a great deal of experience in the techniques used to minimize incidental communications, and very detailed procedures for handling these communications are contained in the United States Signals Intelligence Directive 18, which has been in effect for over 28 years.
Remember, the government is gathering information relating to foreign intelligence in order to protect national security, not necessarily for criminal prosecution. That’s why different procedures are necessary. Otherwise, all national security information gathering would be changed to fit within the procedures of Title III criminal wiretaps, which is impossible.
Minimization techniques deal not just with retention and dissemination, but with acquisition. Analysts make decisions upfront whether to acquire, keep, or share US person information based on whether it has foreign intelligence value.
This means that if a judge is reviewing compliance with minimization procedures, this review is much more than just a factual check. The judge is not limited to simply making sure that technical and administrative guidelines are followed. Rather, this amendment could allow a judge to question specific decisions by intelligence analysts on why they chose to acquire, keep, or share certain communications.
Now this begs the question, are judges better trained in intelligence collection than the intelligence analysts whose very job is to repeatedly perform this task? Not only do I think the answer is no, but we should remember what the FISC said in their recent publicly released opinion, which is only the third public opinion released in the history of the FISC. Here’s what the FISC said:
“Although the FISC handles a great deal of classified material, FISC judges do not make classification decisions and are not intended to become national security experts. Furthermore, even if a typical FISC judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.”
Enactment of this amendment could result in judges making foreign intelligence determinations in place of trained intelligence analysts. Based on this unjustified scrutiny, our intelligence analysts could become overly cautious when determining whether to deem information as having intelligence value in order to avoid unwarranted judicial scrutiny. This could result in less foreign intelligence information being accumulated, and thus could mean we may miss a vital of piece of information. Do we want to take this chance? Should we risk this type of unintended result?
In October of 2007, I asked Assistant Attorney General Wainstein if putting the FISC judges in the position of assessing compliance would effectively put the judge in the role of an analyst. Here’s what he said in response:
“And that is the problem, that it would get the FISC in the position of being operational to the extent that it's not when it assesses compliance for, let's say, the minimization procedures in the typical or traditional FISA context where you're talking about one order, one person. Here, some of our orders might well be programmatic, where you're talking about whole categories of surveillances, and that would be a tall order for the FISA Court to assess compliance.”
The Whitehouse Amendment also contains language which lets the FISC fashion remedies it determines are necessary to enforce compliance. This is very broad language, and gives the court the ability to come up with whatever methods it chooses to enforce compliance. Does this mean that the FISC could shut down collection while the government addresses technical issues which have little to do with the privacy of American citizens? We just don’t know, since this amendment does not answer this question. Remember, we’re talking about targeting foreign terrorists to prevent terrorist attacks! This is not the same thing as wiretapping a cocaine dealer in Los Angeles for criminal prosecution! If we make mistakes here because the Whitehouse Amendment leaves open too many unanswered questions, we are putting Americans at risk in unprecedented ways.
Given that the government has adequately utilized minimization procedures for many years, what is the pressing need for FISC expansion into this area? There is no need to continue unlimited expansion of the FISC into unsuitable areas.
If this amendment does not pass, it does not mean that American citizens are not protected. Incidental communications of Americans will continue to be minimized, and the minimization procedures will have been approved by the FISC. But if the Whitehouse Amendment passed, we will be taking a great risk with perhaps the unintended consequence that the judicial oversight will cause very harmful unintended intervention that I have already mentioned. We are too far along to introduce guesswork into the carefully crafted compromise bill before us. I will oppose this amendment, and I urge my colleagues to do the same.
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