The Department of Justice wants Congress to reauthorize a five-year-old law that is one of the top tools for collecting foreign intelligence, but Democrats and privacy advocates say the public deserves more oversight on how it is used.
The Foreign Intelligence Surveillance Act allows the government to intercept e-mails and phone calls without a warrant. No detail of the programs results gets to the public, the critics complain, and little gets to Congress.
Rep. John Conyers (D-Mich.) said Director of National Intelligence James Clapper Jr. will not disclose even in closed-door security briefings with Congress how many people are being subjected to surveillance in the United States.
“How do we make sure, quite frankly, FISA is not out of control? At this point, we don’t have a way of knowing that,” Conyers said during the hearing. “This whole idea of us holding a hearing about FISA, and nobody from FISA is here—that’s part of the problem. We want to talk to the director, publicly or privately.”
Rep. James Sensenbrenner (R-Wis.) said Republicans back the DOJ’s push to reauthorize the FISA Amendments Act, which expanded the FISA program during the Bush administration in 2008 to include the interception of digital communications. The law is set to expire in 2013.
The irony was not lost on Sensenbrenner, who said today’s hearing was “a rare chance to see bipartisanship,” since Republicans support the White House’s position on FISA and the Democrats are fighting it.
The DOJ’s actions are subject to oversight by the Foreign Intelligence Surveillance Act Court. Kenneth Wainstein, a partner at Cadwalader, Wickersham & Taft and former first assistant attorney general for national security, told the House subcommittee members that court is aggressive in guarding how the executive branch uses the FISA law.
“They’re federal judges—they’re used to asking questions and getting answers for those questions,” Wainstein testified. “They ask the tough questions.”
But the Electronic Privacy Information Center (EPIC) and the ACLU say there is simply too little information about how the government is using the law, which is supposed to allow for wiretaps of foreigners in foreign countries.
Jameel Jaffer, deputy legal director of the ACLU, said media reports found American citizens had their e-mails and phone calls intercepted, and public records suggest that the court has had to reel in the government, including demanding reports about activities every 90 days.
On one hand, that shows the court exercises its authority, Jaffer said. But on the other hand, he continued, it gives reason to question the assurances from the White House that the law is being followed as intended.
EPIC Executive Director and Georgetown University Law Center adjunct professor Marc Rotenberg argued that more public oversight would allow for more confidence in the program. “We simply don’t know the circumstances under which FISA is used,” Rotenberg said.
The scrutiny of the FISA program is heating up. Sensenbrenner said that Clapper and a yet-to-be-determined DOJ official would answer questions during a classified briefing with representatives next Thursday.
And the Supreme Court has also agreed this month to hear a challenge to FISA from Amnesty International.