FISA Expansion Sparks Civil Liberties Concerns

By Nathan Burchfiel | July 7, 2008 | 8:32pm EDT

( - Both chambers of Congress over the weekend voted to expand the government's ability to listen in on foreign conversations as part of the war on terror. But some civil liberties advocates question whether the bill goes too far in broadening the government's warrant-less surveillance power.

The Senate passed the Protect America Act in a 60-28 vote on Friday. The House followed suit Saturday, passing the bill 227-183.

The measure allows the attorney general and the director of national intelligence (DNI) to "authorize the acquisition of foreign intelligence information" without the approval of the special court established by the Foreign Intelligence Surveillance Act (FISA).

Passage of the bill has earned praise from leaders on both sides of the aisle, including President Bush, who signed it into law Sunday.

"This law gives our intelligence professionals this greater flexibility while closing a dangerous gap in our intelligence gathering activities that threatened to weaken our defenses," Bush said in a statement.

"And so, in signing this legislation today I am heartened to know that his [DNI Mike McConnell] critical work will be strengthened and we will be better armed to prevent attacks in the future," he added.

House Minority Leader John Boehner (R-Ohio) also praised the bill's passage, saying "America will be safer for it" and pledging that Republicans "will fight to make this solution permanent." The bill includes a "sunset provision" which mandates its expiration in six months.

The bill earned the support of 16 Democrats in the Senate and 41 Democrats in the House. But House Speaker Nancy Pelosi (D-Calif.) said "many provisions of this legislation are unacceptable" and urged the House Judiciary Committee to offer amendments to the bill when the House reconvenes in September to address its "many deficiencies."

Despite the congressional support, civil liberties advocates have raised concerns that the measure goes too far in permitting the executive branch to listen in on conversations without adequate judicial oversight.

"The administration approach would allow the NSA [National Security Agency] warrant-less access to virtually all international communications of Americans with anyone outside the U.S., so long as the government declared that the surveillance was directed at anyone reasonably believed to be overseas," stated the Center for National Security Studies (CNSS).

The CNSS states that the new law "would allow massive surveillance of Americans with no meaningful judicial oversight or individualized probable cause in violation of the Fourth Amendment."

The organization warns that the expanded surveillance powers go beyond the surveillance used in Bush's "terrorist surveillance program." In that program, which also sidestepped FISA court approval, the administration listened in on foreign conversations with suspected terrorists.

"For all these millions of American communications, there would be no requirement that the American even be suspected of any contact with or connection to al Qaeda or any other terrorists," CNSS stated.

"[T]he purpose of the surveillance that would be authorized under the bill is to gather 'foreign intelligence' generally, not just intelligence about terrorism," it added.

Technology and civil liberties scholar Timothy Lee, with the libertarian Cato Institute, wrote: "The only real bright spot is that the legislation sunsets after six months. That will give Congress the opportunity to do what it should have done this weekend: require that no surveillance of domestic communications occur without prior judicial approval of each surveillance target."

But supporters of the legislation say fears about government surveillance of Americans' everyday conversations are overblown and that the expansion of eavesdropping powers is necessary to fight terrorism.

"Certainly it's necessary for right now to enable the intelligence community to be able to get the information they need to protect us," Erica Little, a legal policy analyst for the conservative Heritage Foundation, told Cybercast News Service.

"FISA needs to be updated, needs to be brought up to speed on the evolution of technology as far as communications are concerned," Little said.

She said the administration's goal in seeking broader surveillance powers is to safeguard the public and that concerns over civil liberties are overblown.

"I think the ultimate goal here is to safeguard the public, and you can look at it in comparison to airport security before you fly. The goal is to protect Americans, not to prevent them from traveling," Little said. "I think the government's interest in simply invading American's privacy with impunity is small."

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