Outside editorial: Not so fast on FISA

The following editorial appeared in the Los Angeles Times:


Four years ago Congress authorized the electronic surveillance of suspected terrorists and foreign agents located outside the United States, with provisions that supporters said would adequately protect the privacy of Americans. On Tuesday, the Senate Intelligence Committee voted to extend those provisions, which expire at the end of the year, until 2017, and the chairman and vice chairman of the committee urged “quick action by the Senate and House to enact this extension.”

Not so fast. Congress is still owed more information from the Obama administration about the way the 2008 amendments to the Foreign Intelligence Surveillance Act have been implemented.

The basic bargain reflected in the law was this: In exchange for relatively lenient court approval of surveillance of the phone conversations and emails of suspected terrorists abroad, the government would be restricted in its targeting of U.S. citizens and permanent residents. The government also would take care to “minimize” or delete communications from innocent Americans caught in the National Security Agency’s electronic dragnet.

This arrangement was a significant improvement over the warrantless wiretapping engaged in by the George W. Bush administration in its once-secret Terrorist Surveillance Program. Under the 2008 amendments, to obtain court approval for surveillance of a U.S. citizen or resident abroad, the government would have to convince a special court that there was probable cause to suspect that individual of being an agent of a foreign power or terrorist group. But surveillance not targeted at Americans could be authorized in much more general terms by the attorney general and the director of national intelligence, subject to review by the special federal court that was created under FISA.

We recognize that broad authority to conduct surveillance of foreign targets was the political price for restrictions on the targeting of Americans, though we’re troubled that the law allows the government to describe its surveillance operations to the FISA court in extremely general terms (possibly as broad as “all phone calls, text messages and emails originating in Yemen”).

The more compelling complaint is that the intelligence community might be inadvertently or intentionally overcollecting information from Americans despite the law’s protections. In 2009, the New York Times reported that the NSA intercepted phone calls and emails of Americans in situations not permitted by the law. (Government officials said the problems were resolved.)

More recently, the office of the director of national intelligence told two senators that it was not “reasonably possible” to determine how many people in the U.S. have had their private communications reviewed under the FISA law. Knowledge of that number would help to determine whether Americans are being “reverse-targeted” in operations purportedly aimed at foreigners abroad but actually designed to focus on someone in the U.S.

The Obama administration has requested renewal of the 2008 amendments without responding effectively — and in public — to concerns about collateral damage to the privacy of Americans. It can, and should, do so without compromising specific operations. Then Congress can act.


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