February 1, 2006

HARMAN: FISA WARRANTS CAN COVER ALL ACTIVITIES OF THE NSA PROGRAM

~ Letter to President Highlights Eight Specific Changes Made After 9/11 to Modernize FISA ~

WASHINGTON D.C. ---- In a letter to the President sent today, Rep. Jane Harman (D-Venice), the Ranking Member on the House Intelligence Committee, said she believes “the activities of the NSA program can – and should – be accomplished within the law, not by circumventing it.”

Harman’s letter outlines eight specific changes that were made to the Foreign Intelligence Surveillance Act (FISA) in recent years “to reflect changes in the way terrorists and spies communicate.”

As one of the few Members of Congress briefed on this program, Harman asks “why FISA as presently drafted cannot cover the entire program?” She also asks, “If the post-9/11 amendments are insufficient, why were they proposed?”

Harman reiterates the Administration’s obligation under the National Security Act to brief the full Congressional Intelligence Committees on the program. “If hundreds in the Executive Branch have already been briefed, why shouldn’t 36 responsible Members on the Committees of jurisdiction be briefed?”

The complete text of the letter is included below.

February 1, 2006

The President of the United States
The White House
Washington, DC 20500

Dear Mr. President:

As someone who believes in the need for strong, modern, and flexible tools to detect terror plots in the United States, I have consistently supported your requests to modernize the Foreign Intelligence Surveillance Act (FISA).

FISA was first enacted in 1978, but Congress has modified it several times to reflect changes in the way terrorists and spies communicate.

For example, in the aftermath of 9/11, you sought – and Congress approved – numerous changes to FISA to reflect the fact that terrorists use multiple cell phones, e-mail accounts, and the Internet.

As part of the USA PATRIOT Act, Congress made the following changes to FISA:

• Expanded the scope of FISA Pen Register Authority. The PATRIOT Act expanded pen register and trap and trace (“pen-trap”) authority under FISA to include addressing and routing information from e-mail and Internet traffic, in addition to the previously authorized interception of incoming and outgoing telephone numbers.

• Lowered the Standard For FISA Pen-Traps. Prior to the PATRIOT Act, the government could obtain a FISA order for pen-traps only upon certifying that there was reason to believe that the line to be monitored is being used or about to be used by a suspected spy or terrorist. Under the PATRIOT Act, a FISA pen-trap order may be obtained “for any investigation to gather foreign intelligence information” where the government certifies that the information sought is “relevant” to an ongoing investigation. This lower standard of relevance also applies to e-mail and Internet traffic.

• Allowed for “John Doe” Roving Wiretaps. To address the problem of suspected terrorists whose identities are unknown switching phones or computers, FISA was amended by the PATRIOT Act to allow for a generic warrant authorizing interception of communications by an unidentified target, regardless of the specific communications device used.

• Lowered the Legal Standard for FISA Surveillance. Prior to the passage of the PATRIOT Act, the government could conduct surveillance under FISA only where gathering foreign intelligence information was the purpose for the surveillance. The PATRIOT Act changed FISA to allow collection when gathering foreign intelligence information is a significant purpose of the surveillance.

• Extended the Duration of FISA Warrants. The PATRIOT Act significantly extended the duration for FISA warrants for certain categories of surveillance and physical searches.

• Expanded the Scope of Business Records that Can Be Sought with a FISA Order. Before 9/11, only common carriers, hotels, storage facilities, or car rental agencies were subjected to FISA’s business record authority. Section 215 of the PATRIOT Act eliminated restrictions on the categories of records that could be sought — permitting FISA subpoenas to be issued for “any tangible things,” including the records of libraries, booksellers, financial institutions, Internet service providers and others.

As part of the Intelligence Authorization Act of 2002, Congress made the following change to FISA:

• Extended FISA’s Emergency Exemption to 72 hours. FISA previously allowed the government to begin surveillance without a warrant, in an emergency, so long as a warrant request was presented to the FISA Court within 24 hours. The Intelligence Authorization Act of 2002 extended that 24-hour exception to 72 hours.

As part of the Intelligence Reform and Terrorism Prevention Act of 2004, Congress made the following change to FISA:

• Broadened FISA to Allow Surveillance of “Lone Wolf” Terrorists. In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress for the first time allowed FISA surveillance of any non-U.S. person who engages in or prepares for international terrorism. Previously, FISA surveillance was available only where the government could show a nexus to a foreign power or international terrorist group.

Having reviewed these changes to FISA, I believe that the activities of the NSA program can – and should – be accomplished within the law, not by circumventing it. I am one of the few in Congress who has been briefed on the program, and I am not clear why FISA as presently drafted cannot cover the entire program. If the post-9/11 amendments are insufficient, why were they proposed? If the modifications made by the PATRIOT Act are still inadequate, why didn’t the Administration propose additional changes?

The logical next step is to authorize a briefing on the program for the full Congressional Intelligence Committees, as required by the National Security Act of 1947. Our Committee Members all want to improve our intelligence capabilities and can help ensure that our laws work as they should. If hundreds in the Executive Branch have already been briefed, why shouldn’t 36 responsible Members on the Committees of jurisdiction be briefed?

                         Regards,

                         Jane Harman
                         Ranking Member

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