H.R. 6304, THE FISA AMENDMENTS ACT OF 2008 (6/19/2008)
The ACLU recommends a no vote on H.R. 6304, which grants sweeping
wiretapping authority to the government with little court oversight and
ensures the dismissal of all pending cases against the telecommunication companies. Most
importantly:
• H.R. 6304 permits the
government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without
any individualized review, and without any finding of wrongdoing.
• H.R. 6304 permits only
minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures
for targeting and minimizing the use of information that is collected. The court
may not know who, what or where will actually be tapped.
• H.R. 6304 contains a general
ban on reverse targeting. However, it lacks stronger language that was contained in prior House bills that included
clear statutory directives about when the government should return to the FISA
court and obtain an individualized order if it wants to continue listening to a US
person’s communications.
• H.R.6304 contains an
“exigent” circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to
start a spying program and wait to go to court for up to 7 days every time
“intelligence important to the national security of the US may be lost or not
timely acquired.” By definition, court applications take time and will delay the
collection of information. It is highly unlikely there is a situation where this
exception doesn’t swallow the rule.
• H.R. 6304 further
trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is
denied by the court. The government has the authority to wiretap through the entire
appeals process, and then keep and use whatever it gathered in the meantime.
• H.R. 6304 ensures the
dismissal of all cases pending against the telecommunication companies that facilitated the warrantless
wiretapping programs over the last 7 years. The test in the bill is not
whether the government certifications were actually legal – only whether they were
issued. Because it is public knowledge that they were, all the cases seeking to find out
what these companies and the government did with our communications will be
killed.
• Members of Congress not on
Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director
of National Intelligence, and Inspector General.
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