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Senators Feinstein and Specter Continue Efforts to Reaffirm FISA as the Exclusive Method for Domestic Electronic Surveillance

-Bill would ensure Congressional oversight, expand intelligence agency flexibility-

Washington, DC – U.S. Senators Dianne Feinstein (D-Calif.) and Arlen Specter (R-PA) today re-introduced legislation reaffirming that the federal government must follow the requirements of the Foreign Intelligence Surveillance Act of 1978 (FISA) when conducting electronic surveillance of American citizens in the United States for foreign intelligence purposes.

The Feinstein-Specter bill also would prevent delays in intelligence agency anti-terrorist surveillance, while ensuring that these activities do not violate the civil liberties guaranteed by the U.S. Constitution and federal law.

“This bill underscores that President Bush – as well as future Presidents – must adhere to the requirements of the Foreign Intelligence Surveillance Act when conducting electronic anti-terror surveillance,” Senator Feinstein said.

“I believe this bill strikes an important balance -- between the national security interests of the United States and the need to protect the civil liberties of American citizens.”

“In this age of terrorism and asymmetric threats, it is vitally important that the President and our intelligence agencies are allowed to protect the United States from attack. It is equally important that the fight against terror not erode Americans’ civil liberties, and that intelligence activities must be consistent with the Constitution and federal law.”

Senator Specter said: “Like legislation I pursued last year, this bill ensures that the Supreme Court will review the constitutionality of the Terrorist Surveillance Program and will do so in expedited fashion. We cannot allow important constitutional questions about the program to linger unresolved.”

Senator Specter added, “This bill also underscores that orders issued by the Foreign Intelligence Surveillance Court, such as the orders recently issued for the Terrorist Surveillance Program, must be supported by an individualized finding of probable cause.”

For more than five years after the Sept. 11, 2001 terrorist attacks, the National Security Agency collected information on telephone calls to and from American citizens without a court order, as required by FISA. This activity, conducted under the “Terrorist Surveillance Program,” also took place without informing, or seeking authorization from, the full membership of the Congressional intelligence committees.

Since January, Terrorist Surveillance Program activities have been conducted under FISA Court approval. In addition to stating that FISA is the exclusive means for gathering anti-terror intelligence, this bill will require that the Administration brief full Congressional intelligence committees on all surveillance activities.

The bill also contains provisions intended to provide intelligence agencies greater flexibility to thwart terrorist attacks, and to speed the FISA process. It will extend to seven days the emergency period during which surveillance may be conducted without a warrant, as recommended by several FISA judges. Current law restricts such activity to 72 hours.

Also, it would expand the ability of the Attorney General to designate FBI and NSA officials to initiate emergency surveillance, who must seek a warrant within seven days. And it would allow more leeway for the National Security Agency to collect intelligence from foreign-to-foreign communications.

The bill also would allow for the collection of intelligence without a warrant for up to 30 days after a Congressional authorization to use military force, or after a terrorist attack on the United States.

“I believe that the goals of gathering anti-terrorist intelligence, and protecting the civil liberties of American citizens, are not mutually exclusive,” Senator Feinstein said. “This legislation provides a framework for this to happen. I am hopeful that my colleagues in the Senate will agree. I urge them to support this bill.”

Following is a summary of the Feinstein-Specter bill:

The Foreign Intelligence Surveillance Improvement and Enhancement Act

The Foreign Intelligence Surveillance Improvement and Enhancement Act, reaffirms Congress’s role in setting parameters for wiretapping, while also providing reasonable new authorities and flexibility to conduct surveillance on terrorists.  The bill protects civil liberties while making limited changes to ensure that the President’s warrantless surveillance program – and all other foreign intelligence electronic surveillance programs – can continue to operate and protect our nation under FISA court oversight. 

Key provisions:

• Exclusivity. Re-states that all electronic surveillance for foreign intelligence purposes must follow FISA.

• Individuality. Clarifies that a FISA Court order applies to a specific foreign power or agent of a foreign power.

• Additional Time.  Extends the “emergency” period during which surveillance can proceed without a warrant from 72 hours to seven days, as some FISA judges have requested.

• Emergency Delegation.  Allows the Attorney General to designate specified FBI and NSA officials to begin emergency surveillance, provided that the Attorney General is notified within 24 hours and approves surveillance within three days; a warrant must be sought within 7 days.

• Informs Congress.  Requires briefings on electronic surveillance conducted for foreign intelligence purposes to the full Congressional intelligence committees.

• Court review. Requires the Supreme Court to review, on an expedited basis, the constitutionality of the Terrorism Surveillance Program upon the appeal of a lower court decision.

• Wartime Authority.  Expands FISA’s rule allowing wiretaps without warrants after a declaration of war, from 15 days to 30 days. This also applies to a Congressional authorization to use military force, or after a major terrorist attack on the United States.

• Additional Resources.  Authorizes additional personnel and an improved document handling system at the NSA, FBI, DOJ and the FISA Court to reduce the time it takes to prepare and file a FISA application.  Authorizes as many new FISA Court judges as are needed to manage the caseload.

• Clarification.  Updates FISA to clarify that surveillance of communications to and from parties outside the United States does not require a FISA court order.

“This legislation increases flexibility and provide additional tools and resources to go after terrorists,” Senator Feinstein said. “However, it does so while preserving the core principles of FISA and protecting the constitutional rights of Americans.”