FISA Fight

Congressional vote to reauthorize surveillance program highlights administration reversals on spying, transparency

"The Conversation" 1974 film
September 12, 2012

The Obama administration is pushing for the reauthorization of a law allowing warrantless wiretaps and prolonging Freedom of Information Act (FOIA) requests despite campaigning against such measures and promising to be the most transparent administration ever.

In a statement of administration policy released Monday, the Obama administration announced it "strongly supports" reauthorizing the FISA Amendments Act, on which the House is expected to vote Wednesday. The act "allows the Intelligence Community to collect vital foreign intelligence information about international terrorists and other important targets overseas, while providing protection for the civil liberties and privacy of Americans," according to the statement.

This is something of a turnaround for President Obama, who argued for a different policy while he was a candidate in 2008.

"As president," Obama promised, he "would update the Foreign Intelligence Surveillance Act (FISA) to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law."

The 2008 Democratic Party platform was harsher.

"We reject illegal wiretapping of American citizens, wherever they live," the platform read. "We reject the use of national security letters to spy on citizens who are not suspected of a crime."

Then-Senator Obama voted for the 2008 FISA Amendments Act despite his party’s rhetoric.

The Foreign Intelligence and Surveillance Act of 1978 established a secret national security court to approve individual wiretaps on individual U.S. communications, and it became a key tool in the Bush administration’s war on terror. The 2008 amendments expanded the court’s power to approve programmatic surveillance, rather than individual wiretaps.

Critics say the Justice Department has stonewalled a FOIA request so as to delay release of information on the surveillance program before the reauthorization vote this week—a noted departure from the Obama administration’s pledge to be the most transparent administration in history.

Cato Institute Research Fellow Julian Sanchez requested the latest semi-annual compliance reports on the FISA program from the Justice Department. As part of the amendments act, the reports are provided to Congress to ensure that privacy safeguards are being followed. Previous reports have been released in partially redacted form to the public via FOIA requests.

However, the Justice Department told Sanchez—long after it was legally required to respond—that it could "neither confirm nor deny the existence" of the reports, even though they are statutorily required by law.

"For [Justice] to take more than two months, then at the end not even give a serious answer but say they can’t confirm or deny the existence, it seems like a delay tactic," Sanchez said in an interview. "This is going to Congress later this week, so if they can drag this out, the effect will be to prevent public disclosure and discussion of these reports until its too late to make a difference."

Justice Department spokesman Dean Boyd told the Free Beacon that "the letter sent to [Sanchez] by the Justice Department's National Security Division (NSD) was incorrect. NSD will send a corrected response to Mr. Sanchez shortly."

Upon entering office, President Obama issued executive orders to the Justice Department declaring it should err in favor of transparency in its FOIA policy.

Sanchez and other civil libertarians contend the powers granted to the government under the FISA Amendments Act are overbroad. Supporters of FISA argue it allows intelligence agencies to better protect Americans from terrorism.

Gary Schmitt, a resident scholar at the American Enterprise Institute, said the numerous safeguards put in place by the 2008 amendments make it "virtually impossible to be abused."

The 2008 amendments restrict the government from storing surveillance data for more than ten years and put limits on access to that data. They also made wiretaps on overseas Americans subject to FISA court approval.

"The key thing is, if the goal is to prevent things, you have to have info that gives you a heads-up well before an act is undertaken," Schmitt said. "If your standards are going to be very heightened and rigorous, you’re going to be behind the curve in operational planning. Americans decided they wanted to be ahead of the curve."

The five-year reauthorization is expected to pass the House, but Sen. Ron Wyden (D., Ore.) told the Wall Street Journal Tuesday that he plans to continue his legislative "hold" on the bill, effectively blocking it, because the government has not disclosed enough information on the program.

When asked for comment on the discrepancy between Obama’s campaign promise and the administration’s statement of policy, the White House sent the Free Beacon a link to its statement of policy.