Expiring Intelligence Authorities: Another Year-End Task

On Monday, the U.S. Supreme Court heard oral argument in the continuing efforts of the American Civil Liberties Union (ACLU) to eliminate intelligence tools necessary to protect Americans from terrorist attacks. In Clapper v. Amnesty International, the Court is evaluating whether plaintiffs have standing to challenge the 2008 updates to the Foreign Intelligence Surveillance Act of 1978 (FISA). Solicitor General Verrilli pointed out the ACLU is seeking to “invalidate a vitally important national security statute.” Three critical points came from the argument:

• FISA Updates Must Be Reauthorized This Year. First and foremost, the occasion of the argument should serve as a reminder to Majority Leader Reid that the 2008 updates are set to expire at the end of this year. The Director of National Intelligence testified to Congress at the beginning of this year that the highest legislative priority of the intelligence community this year “is reauthorization of these authorities in their current form.” Of all the legislative items Senate Democrats have neglected this year, failing to reauthorize national security tools critical to the intelligence community in its fight to keep Americans safe from terrorists may be among the most egregious.
• Arguments Against FISA Updates Are Overbroad. Second, no one should be dissuaded from the need to reauthorize the FISA updates by the misrepresentations of the statute made at oral argument by the ACLU. The ACLU attorney arguing the case claimed “the whole point of this statute was to allow the government to collect Americans’ international communications,” subjecting Americans to “dragnet surveillance.”
• Senator Rockefeller, who was Chairman of the Senate Intelligence Committee in 2008, provided a much more accurate summary of the bill at the time of its enactment, saying, “it sets forth a legal framework to reflect the enormous changes in telecommunications technology over the last 30 years ... coupl[ing] this improvement in foreign intelligence collection against foreign targets overseas with important protections for civil liberties.”    
• FISA Updates Contain Appropriate Safeguards. Third, Americans should be confident in Senator Rockefeller’s point that the law provides robust protections for Americans’ civil liberties. As part of the intelligence collection effort, the law required the Attorney General to develop targeting and minimization procedures and submit those to the Foreign Intelligence Surveillance Court for review. The ACLU attorney conceded Justice Scalia’s point at argument that if these statutory directives resulted in procedures that produced a violation of the Fourth Amendment, “the FISA Court would presumably know that” and rule accordingly. 
• Moreover, the Director of National Intelligence described in testimony to Congress this year that the law “provides for comprehensive oversight by all three branches of government to protect the privacy and civil liberties of U.S. persons,” and the executive branch reports to Congress on implementation and compliance twice a year.

While Congress waits for the U.S. Supreme Court to apply its standing doctrine correctly to ensure the judiciary is only hearing true cases and controversies surrounding intelligence matters, Congress must act before the end of this year to reauthorize this vital intelligence tool. It should be among the highest legislative priorities of Congress this year. As the DNI has testified: it “allows the Intelligence Community to collect vital information about international terrorists and other important targets overseas ... authoriz[ing] surveillance of non-U.S. persons located overseas who are of foreign intelligence importance, meaning they have a connection to, or information about, threats such as terrorism or proliferation.” Failure to reauthorize this tool will only hinder the intelligence community’s efforts in addressing these threats.