The RESTORE Act Does What is Needed to Protect America

05/25/2011 12:20 pm ET

In November, the House of Representatives passed the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act), making some needed changes to the Foreign Intelligence Surveillance Act (FISA). Introduced by Judiciary Committee Chairman John Conyers, Jr. (MI-14) and Intelligence Committee Chairman Silvestre Reyes (TX-16), myself and several others, this bill would help restore the rule of law and give to the intelligence community the tools it needs to conduct effective surveillance of terrorists while protecting Americans against invasion of our liberty.

The Conyers-Reyes bill restores and enhances the role of the Foreign Intelligence Surveillance Court in monitoring electronic surveillance programs, clarifies that monitoring communications among people in foreign countries does not require court approval, requires FISA warrants when targeting domestic communications, and strengthens protections against "inadvertent" warrantless surveillance of Americans ostensibly aimed at foreigners abroad. The bill also requires periodic audits of surveillance activities by the Justice Department's Inspector General. Additionally, the bill provides resources to the National Security Agency and the Justice Department for processing FISA applications and other submissions to the FISA court in a timely and efficient manner, and to comply with the audit, reporting and record-keeping requirements.

When the House Judiciary Committee approved the bill, that panel also accepted an amendment that I offered to strengthen judicial oversight of the surveillance programs by the FISA Court. The RESTORE Act embodies the best, most reasonable approach to our surveillance programs. It not only increases resources, it focuses them on the real threats to our national security and ensures that these powers are used correctly and consistently with our laws and with the Constitution.

We have refused to accept a key administration demand that telecom companies that cooperated with allegedly illegal government spying be immunized from any legal accountability. This is an outrageous demand, and has nothing to do with national security. The administration has never disclosed to Congress, even on a classified basis, what actions they believe need to receive legal immunity. What information we do have has been made public only through the press, and those reports are troubling. If they broke the law, it is not clear why the telecom companies should receive immunity; if they did not break the law, it is not clear why they would need immunity. In either case, questions of guilt or innocence are more appropriately decided by the courts than by the political process.

Simply put, the telecommunication companies acted either nobly or as knaves. They may have acted nobly -- or they may have acted as knaves, conspiring with a lawless administration engaged in an illegal and unconstitutional invasion of personal privacy and liberty. It is the business of the courts, not Congress, to determine the correct verdict.

The Senate is also considering various bills to reform FISA -- and some include immunity for the telecommunications firms. Fortunately, Senator Dodd has announced that he will block any bill that includes such a provision. And he has the backing of Senators Clinton, Feingold, Obama, Biden, Cardin and Kennedy. In November, the Senate Judiciary Committee approved its version of the FISA reform legislation without any immunity for the telecommunications companies. I urge my colleagues in the Senate to reject any such immunity provisions.

The House has passed a good bill. But the White House and its allies have made diversionary and untruthful allegations to oppose the bill. Earlier this year, it was reported that U.S. intelligence officials delayed wiretapping al Qaeda terrorists suspected of kidnapping an American soldier in Iraq, with terrible consequences. The administration and its supporters have argued that the legal requirements of FISA are to blame. The timeline of events released by the Director of National Intelligence, however, clearly shows that it was the Administration's failure to act swiftly, not any lack of legal authority or flaw in the law, that led to disaster

The RESTORE Act would increase resources available to government so that all FISA warrants are processed swiftly. It also includes emergency provisions, including the ability to begin surveillance immediately and get a warrant after the fact, to ensure that the government will never have to stop listening to a suspected terrorist plotting an attack

One thing that the RESTORE Act does not include is unchecked, blanket authority to conduct surveillance. While some have argued that the bill would allow for the wholesale collection of the communications of Americans, the bill is designed to do just the opposite. It requires the government to have court approved procedures for determining when it begins to target an American and must, therefore, get a warrant from the FISA Court. It would maintain the longstanding requirement that a warrant is needed to listen to a person in the United States or to a U.S. person abroad, and that a warrant is not needed to listen to communications from one person to another outside the United States. The act also contains minimization procedures to protect any U.S. person whose conversation may have been inadvertently monitored.

The RESTORE Act does what is needed to protect America and to protect our freedoms. When the House last considered the bill, the Republicans used a parliamentary procedure to stall the legislation by proposing a change that was already in the bill, and that would have sent the bill back to committee. When it comes to addressing our national security, policy, and not politics should be our guiding conscience.

Indeed, to address the "concerns" laid out by the Republicans, the bill we adopted clarifies that the act will not stop lawful surveillance necessary to prevent Osama Bin Laden, al Qaeda, or any other terrorist organization from attacking America or its allies. And, and in a move to strengthen privacy protections, the RESTORE Act also prohibits the NSA and other agencies from sharing personal information about a U.S. person unless a Senior Executive determines that such action is necessary to protect national security.

The RESTORE Act has already been endorsed by several privacy and civil liberties groups, including the Center for Democracy and Technology and the Center for National Security Studies. It is a balanced and effective approach to meeting our national security needs and protecting our precious liberties. I am hopeful that Congress will do the right thing, and pass a RESTORE Act with the strongest privacy protections possible.

Congressman Jerrold Nadler

Congressman Nadler is the Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.