Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Some thought that with the exit of former Attorney General Alberto Gonzales, Congress might relax its grip on the Justice Department. But in recent hearings lawmakers have made clear that more aggressive oversight is here to stay, quizzing the Department of Justice’s intelligence chief on why Congress should renew the government’s expanded surveillance powers. “I think the concerns you hear . . . are not personal. They are institutional,” Rep. William Delahunt (D-Mass.) told Kenneth Wainstein, assistant attorney general for the National Security Division, and Michael McConnell, director of national intelligence, at a congressional hearing Sept. 18. “Should we trust government? Well, the [ 1978 Foreign Intelligence Surveillance] Act came about because of abuses.” With congressional requests for records about the origin of a warrantless surveillance program still unfulfilled, the administration is fending off critics while trying to appease a Congress controlled by Democrats. It’s a delicate dance for McConnell and Wainstein, who say they are trying to reassure Congress and the public that the intelligence community won’t abuse August’s hastily passed Protect America Act. At times the efforts have been a bit clumsy. “I think this is a healthy dialogue,” Wainstein said in an interview last week. “I don’t begrudge anybody taking a hard look at the statute, analyzing it with a critical eye.” But have they won anyone over with their promises that this time things will be different? Lisa Graves, deputy director of the nonprofit Center for National Security Studies, recalls the intelligence scandals in the 1970s that led to the FISA law and draws a parallel to today’s environment. “They wrote themselves a blank check in August, and now they want a checkbook,” says Graves, formerly a lobbyist with the American Civil Liberties Union and an ex-deputy assistant attorney general in the Justice Department’s Office of Legal Policy from 1995 to 2001. TRUST US Because of vague language in the August statute that is open to interpretation, national security experts say federal agents and analysts now don’t need a warrant to monitor Americans’ calls or e-mails home from a vacation abroad and that even soldiers’ letters from the Middle East could be intercepted. They also say the law could allow for physical searches and mail intercepts in the United States as long as they are done in the name of foreign intelligence. However, government officials strongly reject such scenarios and counter that they are only interested in spying on legitimate foreign targets, agents, or groups through phone calls and e-mails. Far from settling matters, the Protect America Act is once again bringing the conflict of privacy and national security to the fore, much like the debates about the controversial USA Patriot Act and its 2006 revision that cemented the government’s domestic surveillance authority. “The law that was pushed by the administration utterly fails to provide constitutional protections for the privacy rights of Americans,” says Graves, who recently testified before the House Permanent Select Committee on Intelligence. Such strong opinions are one reason McConnell’s office and the Justice Department have begun a public relations campaign ahead of the law’s expiration in February. Lawmakers and chairmen of the key judiciary and intelligence committees have vowed to rein in what they say are overly broad powers in the amendment, which was passed the Saturday before the August recess and includes a sunset provision of six months. Rep. Silvestre Reyes (D-Texas), the chairman of the House Permanent Select Committee on Intelligence, says a new statute “will deal with the deep flaws in the administration’s bill.” Among the more controversial requests before Congress is a government plea to grant retroactive liability immunity to communications companies that assisted the government after the Sept. 11, 2001, terrorist attacks. The August amendment already covers future cooperation, but did not address past actions. One of the passages getting scrutiny is Section 105B, which authorizes “the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.” How the Fourth Amendment applies to U.S. citizens and residents overseas has yet to be tested or fully explained. The government says it has “minimization” techniques to make sure the calls and messages to U.S. parties are vetted for privacy rights intrusion. “The current Protect America Act doesn’t offer adequate protections considering it allows blanket surveillance of foreign communications of Americans without a warrant,” says Kevin Bankston, a staff attorney at the San Francisco-based Electronic Frontier Foundation. The group is awaiting a decision by the U.S. Court of Appeals for the 9th Circuit on its case against several phone carriers that allegedly colluded with the NSA to tap into private communications without a warrant. ADDITIONAL OVERSIGHT? In an effort to assuage Congress and the public that the intelligence community will not abuse its powers, Wainstein has pledged monthly reports to Congress on the law’s application and promised to report any abuses beyond what is required by law. Wainstein also says critics are wrong to theorize that agents could intercept mail and search homes or businesses without warrants. “Most of the hypotheticals we have heard are inconsistent with the plain language of the Protect America Act and the rest of the FISA statute,” he wrote in a Sept. 14 letter to Reyes. “We will not use the statute to undertake intelligence activities that extend beyond the clear purpose of the statute.” Wainstein and other former government lawyers say FISA was outdated and caused delays because it required warrant applications even for foreigners’ e-mail passing through a U.S. Web server. With August’s amendment, that is no longer the case. Wainstein, much like his legal counterparts in the intelligence world, says he is open to revisions, but he’s adamant the government doesn’t want any language that might limit its abilities to spy with or without warrants. “We don’t want to unintentionally undermine the use or effectiveness of this authority,” he told Legal Times. Aside from testifying four times in September before congressional judiciary and intelligence committees, Wainstein also has met with privacy rights and civil liberties groups. McConnell, who became the intelligence czar in January after a prior stint as head of the NSA in the 1990s, has admitted in a now-famous interview with the El Paso Times in August that he is on a public relations drive to overcome criticism. “We’ve got a lot of territory to make up with people believing that we’re doing things we’re not doing,” McConnell told the Texas newspaper in an Aug. 22 story. During the interview, he disclosed that fewer than 100 people on U.S. soil had been monitored, while thousands of foreigners had been targeted for surveillance. He also said that the debate in Congress and the public would cost American lives, a point he still maintains and which has riled some lawmakers. McConnell has also made some misstatements about the government’s eavesdropping efforts that have diminished his standing somewhat in Congress. For example, he has said it takes 200 man hours to get a single warrant through the FISA court � an eye-popping statistic that hasn’t been backed up by current and former Justice Department officials. A congressional staffer familiar with the debate says McConnell’s recent statements have not gone well with some members of Congress, who find them “insulting.” “I don’t think any serious observer thought McConnell was on the mark,” the aide says. Despite that perception, Vito Potenza, the NSA’s general counsel, says while Congress debates eavesdropping powers, it’s important that the nation’s intelligence chiefs make their viewpoints public. “It’s a factor,” he says of the public outreach efforts. But Benjamin Powell, McConnell’s general counsel, says too much public discourse about the nation’s secret surveillance weapons tips off adversaries. “That’s the difficulty of what we do,” says Powell, who was nominated to his post in 2006 after a stint as associate White House counsel and special assistant to President George W. Bush on intelligence matters. Reyes and others in Congress promise to have a new bill ready for mark up in early October. Wainstein says he has yet to see a draft but that he and his staff will work with lawmakers to make sure the current surveillance powers stay in place while providing safeguards against abuse. “The bottom line is, it’s critical that we retain this authority,” he says. “It’s allowed us to rebuild the intelligence gap . . . . One way of ensuring we retain it is demonstrating to Congress and the American public that we are doing this responsibly.”
Pedro Ruz Gutierrez can be contacted at [email protected]. Reporter Jeff Horwitz contributed to this article.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.