FC: American Bar Association urges more oversight of FISA court

[Declan McCullagh <declan () well com>]

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Date: Thu, 13 Feb 2003 17:51:20 -0500
To: Declan McCullagh <declan () well com>
From: Marc Rotenberg <rotenberg () epic org>
Subject: ABA Urges FISA Oversight
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

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                          E P I C  A l e r t
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Volume 10.03                                          February 12, 2003
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                           Published by the
             Electronic Privacy Information Center (EPIC)
                           Washington, D.C.

           http://www.epic.org/alert/EPIC_Alert_10.03.html

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Table of Contents
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[1] ABA Urges Oversight for Foreign Intelligence Surveillance Act
[2] EPIC Files FOIA Brief; Appeals Court Rules for Internet Free Speech
[3] Pentagon Spy Program Limited; PATRIOT II Draft Obtained
[4] INS Proposed Rule on Monitoring Travelers Draws Criticism
[5] Report on Public Access to Congressional Research Service Products
[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore: Information Privacy Law
[8] Upcoming Conferences and Events

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[1] ABA Urges Oversight for Foreign Intelligence Surveillance Act
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The 400,000 member American Bar Association (ABA) has adopted a
resolution calling on Congress to conduct oversight of the Foreign
Intelligence Surveillance Act (FISA) to ensure that government
investigations do not violate Constitutional protections.  The ABA
also urged Congress to require annual reports for FISA investigations,
comparable to those required by the federal wiretap act.  The ABA
action follows a controversial decision by the Foreign Intelligence
Surveillance Court of Review and ongoing concern about the expanded
use of the special investigative authority created by the Foreign
Intelligence Surveillance Act.

The February 10 resolution urges Congress to ensure, through
appropriate legislation, regular and timely oversight, and expanded
reporting requirements, that the FISA is used only when the government
has a significant foreign intelligence purpose -- as required by the
USA PATRIOT Act -- and not to circumvent the stricter Fourth Amendment
warrant requirements applicable to ordinary searches and surveillances.

The ABA Resolution stated:

     RESOLVED, That the American Bar Association urges the
     Congress to conduct regular and timely oversight,
     including public hearings (except when Congress
     determines that the requirements of national security
     make open proceedings inappropriate), to ensure that
     government investigations undertaken pursuant to the
     Foreign Intelligence Surveillance Act, 50 U.S.C. 1801
     et seq. ("FISA" or "the Act") do not violate the First,
     Fourth, and Fifth Amendments to the Constitution and
     adhere to the Act's purposes of accommodating and
     advancing both the government's interest in pursuing
     legitimate intelligence activity and the individual's
     interest in being free from improper government
     intrusion.

     FURTHER RESOLVED, That the American Bar Association
     urges the Congress to consider amendments to the Act to

     (1)     Clarify that the procedures adopted by the
     Attorney General to protect United States persons, as
     required by the Act, should ensure that FISA is used
     when the government has a significant (i.e. not
     insubstantial) foreign intelligence purpose, as
     contemplated by the Act, and not to circumvent the
     Fourth Amendment; and

     (2)     Make available to the public an annual
     statistical report on FISA investigations, comparable
     to the reports prepared by the Administrative Office of
     the United States Courts, pursuant to 18 U.S.C. sec.
     2519, regarding the use of Federal wiretap authority.

The resolution, which now becomes the official policy of the ABA, was
adopted with the support of 87 percent of the House of Delegates.

Mark D. Agrast, Chair of the ABA's Section of Individual Rights and
Responsibilities, said that "the ABA House of Delegates has voted
overwhelmingly to require the government to abide by the limitations
that Congress has placed on the use of the Foreign Intelligence
Surveillance Act."

The Individual Rights and Responsibilities section initiated the FISA
resolution, which was co-sponsored by the sections on Litigation,
Criminal Justice, Administrative Law and Regulatory Practice,
International Law and Practice, Science and Technology Law, and the
Young Lawyers Division.

"Following the enactment of the PATRIOT Act, some government officials
asserted that FISA could be used as long as the government could show
that it has a 'measurable' foreign intelligence purpose," said Agrast.
"The resolution makes clear that any such standard misses the mark.
If the asserted purpose is genuinely significant, as Congress has
required, the courts shouldn't need a Geiger counter to detect it."

Marc Rotenberg, executive director of EPIC and Chair of the ABA
Committee on Privacy and Information Protection, said that the ABA has
continued an important tradition.  "The legal profession must continue
to defend the rights established by the Constitution even at times of
national concern.  Nowhere is the threat more urgent than in the
expanded surveillance authority that the government has sought since
September 11."

EPIC has pursued oversight of electronic surveillance authority since
its founding and participated in the recent challenge to the use of
FISA authority heard by the Foreign Intelligence Court of Review.

American Bar Association, Section on Individual Rights and
Responsibilities:

     http://www.abanet.org/irr/

ABA FISA Resolution, February 10, 2003:

     http://www.epic.org/privacy/terrorism/fisa/aba_res_021003.html

EPIC's Foreign Intelligence Surveillance Act Page:

     http://www.epic.org/privacy/terrorism/fisa/

EPIC's Federal Wiretap Page:

     http://www.epic.org/privacy/wiretap/

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