Congress revisited the Foreign Intelligence Surveillance Act (FISA) law this week, reworking the landmark legislation which, for nearly 30 years, has helped prevent civil liberties abuses while allowing U.S. intelligence agencies the authority to monitor foreign communications and provide valuable intelligence to keep the U.S. one step ahead of its foreign adversaries and rivals.
Unfortunately, 9/11 made clear that the decade’s old FISA law needed an update. Our defenses had been caught off-guard and a lack of accurate and timely intelligence was the main culprit. Developed in response to the Watergate scandal, FISA hadn’t been significantly changed until passage of the USA Patriot Act in 2001. But instead of working in a bipartisan, balanced fashion, the White House — working with the then-Republican controlled Congress — pushed through a number of controversial provisions and then proceeded to push the envelope even further beyond the new law.
What we have learned in the past year is that the White House began monitoring conversations of U.S. citizens without court approved warrants — a violation of the 4th Amendment. The federal courts raised questions on the legality of certain aspects of this monitoring and the National Security Agency supported efforts to provide a stronger legal framework for aspects of this monitoring, such as spying on some potential terrorist targets overseas who were communicating through U.S. based communications networks. The ball was put back in Congress’ court, requiring us to take another, more balanced action.
This led to a showdown with the newly elected Democratic Congress and the White House over FISA. The White House won a small victory just before the August recess, but Speaker Pelosi promised to bring a rewrite of that iteration of the law this fall. Making good on her promise this week, the House passed the RESTORE Act of 2007 (Responsible Surveillance That is Overseen, Reviewed and Effective).
The RESTORE Act brings checks and balances back to the process of intelligence gathering. It protects the privacy of Americans while providing the tools our intelligence community needs to excel at their jobs of keeping America safe. On the intelligence front, the RESTORE Act provides a new authority for the Executive Branch to conduct surveillance of persons reasonably believed to be located outside the United States. It clarifies that no court order is required for surveillance where the sender and recipients are not known to be United States persons and reasonably believed to be located outside the United States. It also states explicitly that the legislation does not confer any rights or privileges on non-United States persons.
On the civil liberties front, the RESTORE Act includes several provisions to allow for independent oversight by the courts, the Congress and the Department of Justice Inspector General. The RESTORE Act would also require the Department of Justice Inspector General to conduct an audit of the Administration’s warrantless surveillance programs – to include providing authorizations and legal memoranda to Congress.
Finding the right balance between security and the protection of our civil liberties is difficult and there is no perfect solution. It was, however, the intent of the founders of our great democracy that we continue to strive towards that goal. Ben Franklin once said, “The man who trades freedom for security does not deserve nor will he ever receive either.” The RESTORE Act was drafted in the mold of this tradition. It will help keep us safe without sacrificing our liberty. But should we find that the RESTORE Act needs modifications in our ever-evolving technological world, the bill includes a sunset provision requiring that it be reauthorized before December 20