02.04.08

S. Amdt. 3920, The Whitehouse Amendment On Minimization Compliance Review

The bill we are now considering gives the executive branch unprecedented authority to conduct warrantless surveillance.  It would permit the government, while targeting overseas, to review more Americans' communications with less court supervision than ever before.  I support surveillance of those who might do us harm, but we also have to protect Americans’ civil liberties.  One of the most important ways to provide that balance is to ensure a meaningful role for the courts in supervising this new authority.

Unfortunately, the Protect America Act severely diminished the Foreign Intelligence Surveillance Court’s role as a check and balance on the executive branch. Under the Protect America Act, the FISA Court cannot conduct oversight over whether the executive branch is complying with the “minimization” rules that are a crucial protection for Americans whose communications are incidentally picked up by government surveillance of overseas targets.  Judicial oversight of how these safeguards are working is a critical protection of the privacy of U.S. persons in this area. 

I want to praise Senator Whitehouse, who as member of both the Judiciary Committee and the Select Committee on Intelligence did so much work to reverse the courts diminished role and to craft this fundamental provision. His amendment, which was part of our Judiciary bill, would ensure that the FISA Court has the authority it needs to assess the Government’s compliance with minimization procedures, to request the additional information it needs to make that determination, and to enforce compliance with its orders. It would make certain that the FISA Court has a meaningful role in overseeing this new surveillance authority. 

Minimization procedures are a key protection – indeed virtually the only protection – for the privacy of the conversations of people in the United States that are “incidentally” collected as part of this broad new surveillance authority.  These could well be completely innocent Americans who happen to be talking to someone overseas.  FISA Court oversight of minimization procedures is critical.  Without this amendment, the FISA legislation would allow the Court to review minimization procedures, but it would not give authority to assess whether the government is complying with those procedures, nor would it permit the Court to take any action to correct failure to comply with those procedures.  This is a crucial amendment and I urge Senators on both sides of the aisle to support it. 

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