Setting the Record Straight on FISA

In recent weeks, there has been lot of conflicting information floating around about efforts by House Democrats to protect the country by adopting rules for intelligence gathering that are both flexible and constitutional. This week, President Bush suggested that my legislative alternative to this summer's hastily-enacted Foreign Intelligence Surveillance Act (FISA) reform, the "Protect America Act," would take away important tools from our intelligence community. He characterized as "obstruction" the skepticism that many of us have about granting amnesty to telecommunications carriers who may have cooperated in warrantless surveillance. I was disappointed that the President did not propose any concrete steps to improve our capabilities or protect our freedoms -- he just repeated his demand for immunity.

This comes close on the heels of a recent controversy concerning the House Democrats' FISA legislation stemming from Joe Klein's column in Time Magazine on November 21st, in which his Republican sources seem to have spun a tale that led Mr. Klein to characterize our efforts as "more than stupid."

I believe that it is time for a comprehensive and detailed response to the President's accusations of obstruction, the misinformation in the Time Magazine column, and the debate over warrantless surveillance. Below is that response. Please let me know what you think, and feel free to pass along to your friends and colleagues.

Joe Klein's recent column deriding the House-passed FISA legislation, along with his subsequent stumbling efforts to clarify its intent, and Time Magazine's failure to publish the protests my Democratic colleagues and I had regarding its many inaccuracies are only the most recent manifestation of disinformation put forth concerning the Bush Administration's warrantless surveillance program and legislative efforts to modify the law. As the lead author, along with Silvestre Reyes, of the RESTORE Act, allow me to set the record straight once and for all.

First, contrary to GOP and media spin, the RESTORE Act does not grant "terrorists the same rights as Americans." Section 105A of the RESTORE Act explicitly provides that foreign-to-foreign communications are totally exempt from FISA - clearly, this exception for foreigners such as members of Al Qaeda does not apply to Americans. In cases involving foreign agents where communications with Americans could be picked up, Section 105B of the legislation provides for liberalized "basket warrant" procedures by which entire terrorist organizations can be surveilled without the need to obtain individual warrants from the FISA court. Again, this new authority is aimed at foreign terrorists, not Americans.

Mr. Klein appears to base much of his criticism of our bill on our use of the term "person" to describe who may be surveilled, based on the suggestion of a Republican "source" that this risks an interpretation that terrorist groups would not be covered. The truth is that under FISA the term person has been clearly defined for almost thirty years to include "any group, entity, association, corporation, or foreign power." It is also notable that both the RESTORE Act, and the Administration's bill passed this summer, contain the exact same language that Mr. Klein questions, yet we've never heard an objection to the Administration's bill on this score.

Second, I must strongly disagree with Mr. Klein's assertion that the Speaker "quashed ... a bipartisan [compromise] effort." As the Chairman of the Committee with principal jurisdiction over FISA, the House Judiciary Committee, I am aware of no effort to prevent bipartisan compromise on this issue. As a matter of fact, last summer, beginning in July, Democrats tirelessly negotiated with Director of National Intelligence (DNI), Mike McConnell, to develop consensus legislation to address the Administration's stated concerns about our intelligence capability.

We addressed every one of the concerns Mr. McConnell raised. He said he needed to clarify that a court order was not required for foreign-to-foreign communications -- our bill did just that. McConnell said he needed an assurance that telecommunications companies would be compelled to assist in gathering of national security information - our bill did that. The DNI said he needed provisions to extend FISA to foreign intelligence in addition to terrorism - the bill did that. He asked us to eliminate the requirement that the FISA Court adjudicate how recurring communications to the United States from foreign targets would be handled - the bill did that. McConnell insisted that basket warrants be structured to allow additional targets to be added after the warrant was initially approved - again, the bill did that. When this legislation was described to DNI McConnell, he acknowledged that "it significantly enhances America's security.''

Yet, suddenly, on the eve of the vote, Director McConnell withdrew his support after consultation with the White House. If the media wanted to identify over-the-top partisanship, they could begin by citing the declaration of David Addington, Vice President Cheney's Chief of Staff, that "We're one bomb away from getting rid of that obnoxious FISA Court," and DNI McConnell's assertion that by merely having an open debate on surveillance, "some Americans are going to die."

Third, the RESTORE Act legislation is badly needed to provide accountability to the Bush Administration's unilateral approach to surveillance. The warrantless surveillance program has been riddled with deceptions that only began to come to light when The New York Times first disclosed the existence of the program in 2005. The program itself appears to directly violate FISA and the Fourth Amendment, as a federal court, the non-partisan Congressional Research Service, numerous Republican legislators, and independent legal scholars have found.

The Administration has also mischaracterized the existence, degree, extent and nature of the program itself as well as how much information it has shared with Congress. For instance, compare the President's speech in 2004 with his admission that there was indeed a program of warrantless surveillance. When high-ranking DOJ officials found the program lacking, the White House went to absurd, if not comical lengths, to convince a dangerously ill and hospitalized Attorney General Ashcroft to overrule them. Even today, the Administration continues to obscure its own past misconduct with extravagant claims that the "state secrets" doctrine bars any legal challenges whatsoever - a position that has been rejected by the Court of Appeals.

The Administration's hastily enacted legislation, signed this summer, is little better. Instead of being limited to the stated problem of foreign-to-foreign electronic surveillance, it could apply to domestic business records, library files, personal mail, and even searches of our homes.

Against that backdrop, it is clear we need a new law with the critical oversight provisions included in the RESTORE Act, such as requiring the Administration to turn over relevant documents to Congress, mandating periodic Inspector General reports, and acknowledging that the Administration is indeed bound by FISA.

Finally, the Administration has yet to explain why offering retroactive immunity to telephone giants who may have participated in an unlawful program is vital to our national security. Under current law, the phone companies can easily avoid liability if they can establish they received either an appropriate court order or legal certification from the Attorney General. Asking Congress to grant legal immunity at a time when the Administration has refused to provide the House of Representatives with relevant legal documents for more than eleven months is not only unreasonable, it is irresponsible.

Civil liberties and national security need not be contradictory policies, rather they are inexorably linked. Perhaps nowhere is this interrelationship more true than in intelligence gathering, where information must be reliable and untainted by abuse to be useful. So when we discuss FISA, the first thing we need to do is drop the partisan rhetoric, and stick to the actual record. Under the RESTORE Act, the intelligence community has the flexibility to intercept communications by foreign terrorists without obtaining individual warrants, and the Court and Congress are given the authority to perform their constitutional oversight roles. The only parties who lose in this process are the terrorists, and those who want the executive branch to have absolute and unreviewable power.

Rather than being, in Mr. Klein's words, "well beyond stupid," the RESTORE Act offers a smart and well balanced approach to updating FISA and reining in the excesses of an unchecked executive branch.

Comments

[Marlyn]

Rep. Conyers,

I don't believe there ARE a lot of terrorists around. It's all made up. By passing all these anti-terror laws, you are entrenching the government's ability to spy on its own citizens, all part of the plan to disable democracy?

Why don't you support impeachment? Join Dennis Kucinich in his strong stand against what the Bush administration has done. Don't let their behavior become precedent.

[Vajara]

Thank you Rep. Conyers for your devoted service and respect for our Constitution that you have always maintained throughout your career.

I hope that you can muster enough votes to impeach Bush and Cheney as that is what our Nation deserves for them destroying the fabric of our Constitution, causing a war, and for bankrupting our Treasury.

We know how skillful you are in presenting our views and being a true leader of our party. Do step forward now, before it is too late, and stop these manical republicans from causing any more damage and further destruction of our reputation as a formerly, great Country.

[outnow]

Rep. Conyers,

Thank you for your service to our country1

The current political move to trade civil rights for a war on terror is misguided. In each of the legislative provisions that encroach on our constitution, there lies a violation of the constitution as constitutional protections "trump" legislative enactments.

If the People amend the constitution, I have nothing to say. But legislative enactment must also have a rational basis for the enactment.

Fear-mongering is not a rational basis for eliminating constitutional rights. The "chilling effect" on free speech and the right to assemble by the Patriot Act, Military Commissions Act is so overwhelming that our entire society has been destroyed by a single terrorist attack by 19 men.

We ourselves have destroyed what it took centuries to achieve - a constitutional system and the rule of law. Our functioning democracy was destroyed by a tactic "terrorism" that has been used for thousands of years.

Barbarians destroyed Rome by cutting the aqueducts. But are we really expecting a nuclear devise to be detonated in a major city at any moment? Is the terrorist threat graver than the known massive nuclear arsenals of Russia of China. For that threat we didn't "throw the "baby" (constitutional rights) out with the "bathwater" (fear-mongering).

Lawyers cannot use the telephone, internet or e-mail because the conversations are being monitored. Politicians cannot discuss ideas without electronic eavesdropping by the government. The People cannot assemble or organize. This wiretapping was going on before 9-11. The government purchased litigation data bases to be used with mainframe computers like COREGIS Software long ago.

I am unwilling to buy into the arguments of the elites who want a police state and have been laying the plans for decades. Trading constitutional rights for perceived security is the simplistic answer, but in the long run, it is our system that is endangered. None of us will live forever but the rights you surrender will never be regained.

[leftLibertarian]

Sir:

One would've had to be sleeping for the past 6 years not to know that Bush and Cheney have committed impeachable offenses.

So the question is: Why hasn't the Democratic Party used its power to impeach them for their many crimes?

[avergejoe]

Keep up the great work, Mr Conyers.

[wanked]

Rep. Conyers,
The crime list of the Bush Admin. grows daily. Some of the REALLY impeachable ones are:
1. Lying to Congress
2. Kidnapping people and not charging them with a crime
3. Torture

WE will be comitting a crime if we do not hold the lawless leaders ACCOUNTABLE. It is our DUTY
to protect the Constitution. It is YOUR duty to protect the Constitution. These crimes set presedent for future administrations. DO YOU WANT AMERICA TO FURTHER DECEND INTO LAWLESSNESS? IMPEACH NOW!!!

[realitytrumpsbull]

As if it hadn't been said enough times:
IMPEACH!

Not just 'cause we're tired of watching the
federal budget(and future hundreds of billions
of tax dollars) being redirected a continent
away, not just 'cause we're sick of what seems
to walk, talk, and act like a police state
foundation on the march, not just 'cause
we're tired of public accountability being
absent in government, but for all these reasons
AND more, including the need to clean house
in this petrocracy.

True republicans, true conservatives, would
have acted to further balance the budget and
take other steps toward limited government.
Therefore, this administration and its' hangers-
on are neither conservative NOR republican,
which should give pause to all and sundry that
consider themselves Bushites, to themselves
take a moment and consider the question
of impeachment. It is my view that both
DNC and GOP have taken leave of their principles
due to monetary pressure, yet they still expect
people to vote. For them. So, they promise people money and pander to this or that special interest. When does the pandering stop? When does public accountability reassert itself?
What IS the government, absent said accountability, but the Mob with free gas? Not for you. For them. What, indeed...

[SpaceCadet]

It's pretty scary when a supposedly reputable news magazine like Time blocks our elected representatives from defending themselves against Joel Klein's beyond stupid misrepresentations. To me, this sorry incident looks like another indication that the "mainstream" media is gradually coalescing into a monolithic organization for disseminating the state propaganda like the old Soviet news agency.

[HearNoWeasel]

Congressman Conyers, I am so glad to see that leading House members still realize one of Congress' highest duties is oversight of the Executive. Don't let Bush or his spokesmen in the press disuade you from this duty. Please continue to do all you can to reign in Bush's & Cheney's grab for unchecked power. Many Americans will never be as afraid of terrorists as they are of these dictatorial men and their enablers (like Addington).

[EyeWantOneNation]

Rep.Conyers: I appreciate you posting information here on The Huffington Post to clear up what you feel were items of misinformation in Time Magazine as written by Joe Klein.
I have to admit, Mr. Conyers, it seems strange to me to write the Protect Act, to clear up loopholes in FISA, when we still have numerous Executive Orders signed by Mr. Bush; not properly overseen by Congress, and the American people still don't feel our rights are being protected.
I'm sure you can tell from the previous posts here; the American people are mad, sir, and we're mad as hell!!
I have read your bio, sir. A long and distinguished career; you have accomplished much and stood strong on MANY issues in your time. I have the utmost respect for you.
My question is: What's holding you back now?
You voted on the Articles of Impeachment against Nixon in 1974. Do you really feel what Nixon did was larger in scope than the doings of Mr Bush and Mr. Cheney?
We are told Rep.Kucinich's bill: HR 333 for impeachment of Dick Cheney is in the Subcommittee on the Constitution, Civil Rights and Civil Liberties, chaired by the Hon. Jerrold Nadler. You also sit on that committee. Impeachment would then go to the House Judiciary Committee; which you chair.
You have made the statement regarding Madam Speaker's statement that "impeachment is off the table", that "it may be off her table, but it's not off mine!"
You have never been afraid to stand up and be counted - we need you to stand up for the Constitution, and for us...the people!!!

[charlesrfd2003]

The reason the Bush administration needs to violate the law to protect the country is that the Bush minions are INCOMPETENT.

I am tired of Bush. I wish he would just go. I don't want to debate him. He does not listen nor does he learn. He is scary. If I were in the Senate I would do a roast of Bush and not care if the other side walked out. This would be funny if it were not so darn serious.

What scares me is that some people think Bush is right, even after yesterday (No Nuke Bombs in Iran per CIA).

[tibetsun]

If Mr. Conyers is so concerned about the "criticisms" of the Fisa Bill, he could stop all of this, back-and-forth, bickering, by bringing IMPEACHMENT legislation to the table, and supporting the legislation of Rep. Kucinich. That would end all of this nonsensical verbiage--once and for all!!

[Bob Egan]

Patriotism is proud of a country's virtues and eager to correct its deficiencies; it also acknowledges the legitimate patriotism of other countries, with their own specific virtues. The pride of nationalism, however, trumpets its country's virtues and denies its deficiencies, while it is contemptuous toward the virtues of other countries. It wants to be, and proclaims itself to be, "the greatest," but greatness is not required of a country; only goodness is.

Support the Values of America
Protect our civil liberties

It is no badge of courage to blindly accept the actions taken in our name by our government.

Using patriotism to oppose your political opponents is empty rhetoric and empty patriotism.

It despises people of foreign birth who've spent years learning our culture and contributing their talents to our economy. It has specifically blamed homosexuals, feminists and the American Civil Liberties Union. In other words, the American flag stands for intimidation, censorship, violence, bigotry, sexism, homophobia, and shoving the Constitution through a paper shredder? Who are we calling terrorists here? Outsiders can destroy airplanes and buildings, but it is only we, the people, who have the power to demolish our own ideals.

The people that fought for our rights were patriots and yet those that are taking our rights away are calling those of us that are refusing to give up our rights unpatriotic! What’s wrong with this picture?

Terrorists may take out a few airplanes or buildings, but to completely destroy this country all we have to do is finish tearing up the Constitution!

If we're really committed in keeping terrorists from stealing our freedoms, then
We must be true patriots to our Constitution. But in times like these, it's difficult for people to be patriotic. It's much easier to wave a flag.

[mcostello]

Wow
Conyers, I hope you are reading these comments.
I have felt this way about this criminally over-reaching admin for years, but this is becoming a tidal wave.
Ride the crest of the wave Mr. Conyers.
Impeach, or watch our government become history.

[susanlno]

I think your response misses the whole point of the FISA debacle: the simple fact that the law as it existed did not need to be revised. The "Protect America Act," yet another Orwellian title, was wholly unnecessary, as the existing FISA rules allowed the President (or George W. Bush, as the case may be) to get a warrant for just about any surveillance he wanted, even retroactively. However, relying on our spineless Congress to do the wrong thing and respond to sneers that they are "soft on terrorism" if they do not help Bush in his unconstitutional quest to expand the powers of the Executive Branch, Bush and his cronies cynically played the "War on Terror" card--again--and got legislation passed that now requires legislation to attempt to undo the damage.

It is disgusting to me how many members of Congress, in both houses, are so easily swayed by name-calling to pass bad bills. When is one of you going to stand up and call the "War on Terror" what it really is: an Executive Branch power grab and an assault on the civil rights of U.S. citizens?