step-up.jpgAs Christy and Siun explained the other day, and as Scarecrow explains today, the Republicans are using the worst sorts of lies to justify taking away your freedoms. Don't let them get away with it -- step up to the plate and swing for the fences. Here's what the ACLU's Liz Rose said in an e-mail yesterday:

We are down to the 11th hour on the FISA fix effort. The vote will be in the house tomorrow. We need your help on a last ditch effort to fix the House's flawed bill (the RESTORE Act). As it stands, the bill is unacceptable because it does not have individual warrants for Americans-- so if this passes as is, the government can collect your phone calls and emails without a real individual warrant.

 

The Democratic Majority can still change its own managers' amendment. Please, call House leadership and Members of the House Rules Committee tonight (or at the latest tomorrow morning) and ask them to put individual warrants for Amercans in the bill.

 

And, as always, please remind the offices that we do not want to let the bells off the hook -- we do not want telecom immunity.

 

The next step is to push the Senate....

 

Thanks,

 

Liz Rose

 

ACLU

 

And yes you can use this and yes you can quote me.

Here are your talking points for phone calls, courtesy of the ACLU:

1. Only pass a FISA modernization bill that has individualized warrants for people in the United States.

2. DO NOT to provide telecom companies with immunity for breaking the law.

3. Blanket or program “warrants” that allow the government to vacuum up the international telephone calls and emails of Americans aren’t really warrants at all, and they aren’t constitutional.

Do make some Senate calls on FISA today as well. You can find direct dial numbers for all Senators here, along with direct links to all of their web pages. The members of the Senate Select Committee on Intelligence, which is primarily responsible for this bill, are as follows:

*Sen. Jay Rockefeller (D-WV), Chairman — (202) 224-6472 FAX: (202) 224-7665
*Sen. Dianne Feinstein (D-CA) — (202) 224-3841 FAX: (202) 228-3954
*Sen. John Warner (R-VA) — (202) 224-2023 FAX: 202) 224-6295
*Sen. Ron Wyden (D-OR) — (202) 224-5244 FAX: N/A
*Sen. Chuck Hagel (R-NE) — (202) 224-4224 FAX: (202) 224-5213
*Sen. Evan Bayh (D-IN) — (202) 224-5623 FAX: (202) 228-1377
*Sen. Barbara Mikulski (D-MD) — (202) 224-4654 FAX: N/A
*Sen. Olympia Snowe (R-ME) — (202) 224-5344 FAX: (202) 224-1946
*Sen. Bill Nelson (D-FL) — (202) 224-5274 FAX: 202-228-2183

Sen. Richard Burr (R-NC) — (202) 224-3154 FAX: (202) 228-2981
Sen. Kitt Bond (R-MO), Vice-Chairman — (202) 224-5721 FAX: N/A
Sen. Saxby Chambliss (R-GA) — (202) 224-3521 FAX: 202-224-0103
Sen. Orrin Hatch (R-UT) — (202) 224-5251 FAX: (202) 224-6331
Sen. Russ Feingold (D-WI) — (202) 224-5323 FAX: (202) 224-2725
Sen. Sheldon Whitehouse (D-RI) — (202) 224-2921 FAX: 202-228-6362

The bolded Senators are the ones that need concentrated calls — the ones which are not highlighted are already on the right track or, unfortunately, likely hopeless on this issue. You can reach them toll free as well thanks to these numbers that katymine found:

1 (800) 828 - 0498
1 (800) 459 - 1887
1 (800) 614 - 2803
1 (866) 340 - 9281
1 (866) 338 - 1015
1 (877) 851 - 6437

Also, the Senate Judiciary Committee membership and contact information is as follows:

Arlen Specter - Pennsylvania - (202) 224-4254 Fax (202) 228-1229
Orrin G. Hatch - Utah - (202) 224-5251 Fax (202) 224-6331
Patrick J. Leahy (Chairman) - Vermont - (202) 224-4242 Fax (202) 224-3479
Charles E. Grassley - Iowa - (202) 224-3744 Fax (515) 288-5097
Edward M. Kennedy - Massachusetts - (202) 224-4543 Fax (202) 224-2417
Jon Kyl - Arizona - (202) 224-4521 Fax (202) 224-2207
Herbert Kohl - Wisconsin - (202) 224-5653 Fax (202) 224-9787
Jeff Sessions - Alabama - (202) 224-4124 Fax (202) 224-3149
Dianne Feinstein - California - (202) 224-3841 Fax (202) 228-3954
Lindsey Graham - South Carolina - (202) 224-5972 Fax (864) 250-4322
Russell D. Feingold - Wisconsin - (202) 224-5323 Fax (202) 224-2725
John Cornyn - Texas - (202) 224-2934 Fax (972) 239-2110
Charles E. Schumer - New York - (202) 224-6542 Fax (202) 228-3027
Sam Brownback - Kansas - (202) 224-6521 Fax (202) 228-1265
Richard J. Durbin - Illinois - (202) 224-2152 Fax (202) 228-0400
Tom Coburn - Oklahoma - (202) 224-5754 Fax (202) 224-6008
Benjamin Cardin — (202) 224-4524 Fax — 202-224-1651
Sheldon Whitehouse — (202) 224-2921 FAX — 202-228-6362

For a letter from the ACLU that explains, point by point, why the current House and Senate bills are bad, just click here for the PDF -- or follow me past the jump:

October 16, 2007
ACLU Opposes the RESTORE Act Because it Fails to Resolve
Constitutional Concerns Regarding the National Security Agency’s
Surveillance of Americans’ E-mails and Phone Calls

Dear Representative,

On behalf of the American Civil Liberties Union (“ACLU”),
America’s oldest and largest civil liberties union, its 53 affiliates and
hundreds of thousands of Members, we write to share our analysis of
H.R. 3773, the RESTORE Act. Because the RESTORE Act fails to resolve
numerous constitutional infirmities enacted in the Protect America Act, Pub.
L. 110-55 (2007), the ACLU opposes the RESTORE Act. The ACLU
further urges Members of the House of Representatives to insist that any
final legislation that is enacted to replace the Protect America Act bring
surveillance conducted under the Foreign Intelligence Surveillance Act of
1978 (“FISA”) in line with both the letter and the spirit of the Fourth
Amendment to the United States Constitution. In addition to its
constitutional infirmities, the RESTORE Act fails to adequately protect the
privacy of Americans’ communications.

While the RESTORE Act is better than the Protect America Act, the
RESTORE Act falls below a standard justifying Member support in several
key areas as discussed in detail below. First, the RESTORE Act legitimizes
mass warrants that are not directed at specific individuals in violation of the
Fourth Amendment to the constitution. Second, the RESTORE Act
explicitly permits the issuance of warrants without requiring the government
to describe with particularity the facility that is to be searched, in violation of
the Fourth Amendment to the Constitution. Third, while the RESTORE Act
does provide some role for the Foreign Intelligence Surveillance Court
(“FISC”) to review surveillance by the National Security Agency (“NSA”),
the Act fails to provide sufficient legal standards for the FISC to judge the
appropriateness, suitability, legality and constitutionality of the procedures
the NSA will use to undertake that surveillance and how it will handle the
communications acquired. Fourth, the RESTORE Act fails to require
specific procedures to ensure that the privacy of innocent Americans’ emails
and phone calls is protected by not demanding the sequestration and/or
destruction of inadvertently acquired communications of U.S. persons.
Fifth, the RESTORE Act creates a potentially enormous loophole that could
be exploited to allow the government to gather virtually all communications
– including those of U.S. citizens – without obtaining any warrant
whatsoever.

1) The RESTORE Act Enacts Unconstitutional Bucket Warrants

The RESTORE Act is deeply flawed in that it legitimizes
unconstitutional mass “warrants”, first permitted by passage of the Protect
America Act on August 5, 2007, which are not really warrants at all because
they are not directed at a particular individual. Called baskets, buckets or
blankets, the new warrants created by the Protect America Act, and
maintained in modified form by the RESTORE Act are most commonly
known as “program” or “general” warrants that violating the Fourth
Amendment to the United States Constitution. The Fourth Amendment
protects against unreasonable searches and seizures. The Amendment states
that:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.

Thus, the Fourth Amendment requires that before the government may
obtain a warrant for a search it must identify with particularity the person or
persons who are the target of the search. By authorizing the government to
obtain bucket warrants in § 3, the RESTORE Act fails to require that the
warrants sought satisfy this requirement. Thus, the RESTORE Act arguably
would permit the NSA to wiretap substantial numbers of unknown persons.
The likely consequence of this is that U.S. persons, living, working or
traveling abroad, will have their communications wrongly swept up into the
dragnet of communications obtained under any non-individualized bucket
warrants. This raises the specter that the NSA will pass along those
conversations and that the information wrongly obtained could be misused
even though the communications do not contain any foreign intelligence
information.


2) The RESTORE Act Explicitly Authorizes Warrants Without
Particularized Descriptions of the Places to be Searched

The RESTORE Act is likely unconstitutional in that it is directly in
opposition to the plain language requirement of the Fourth Amendment to
the Constitution that any oath or affirmation accompanying a request for a
warrant “particularly describe[e] the place to be searched.” Section 3 of the
RESTORE Act proposes amendments to FISA § 105B(c) to permit warrant
applications in a section entitled “Specific Place Not Required.” That
proposed section states that “[a]n application under subsection (a) [of the
RESTORE Act] is not required to identify the specific facilities, places,
premises, or property at which the acquisition of foreign intelligence
information will be targeted.” RESTORE Act, § 3. This language is in
direct conflict with the Constitution.

The impact of this unconstitutional grant of authority is that the NSA
is permitted to listen to and gather communications without identifying the
target phone numbers, e-mails or locations that will be tapped. When such
broad authority is granted, mistakes will surely follow and the NSA will
undoubtedly obtain communications from phone numbers and e-mails that
have no relationship to international terrorism or foreign relations. The
result that follows will be that innocent U.S. persons’ communications will
be scooped up because the NSA has not been forced to precisely target its
vast surveillance capabilities. As a result, the NSA will gather extraordinary
numbers of communications that are wholly irrelevant to NSA’s mission and
that drown the intelligence community in useless information.

Congress should strike this provision from the Act.

3) The RESTORE Act Fails to Provide the FISC Legal Standards
to Judge the Secret Acquisition Procedures

The court review provided by the RESTORE Act does not create a
mechanism in the form of statutory guidance so that the FISC can stand as
an independent check against government abuse of surveillance authority.
While the RESTORE Act takes important steps to reinvigorate the FISC as a
check on future executive branch abuse of FISA, the RESTORE Act does
not provide the FISC judges with specific legal standards for the FISC to
judge the appropriateness, suitability, legality and constitutionality of the
procedures the NSA will use to acquire, collect, warehouse, review, and
disseminate communications intercepted. Section 3(c) of the RESTORE Act
simply requires that the Director of National Intelligence and the Attorney
General will develop procedures in secret, and then, submit those procedures
to the FISC as part of the basket warrant application. But this review is
virtually meaningless because the RESTORE Act does not set forth criteria
to allow the FISC judges to compare those procedures with in order to judge
there lawfulness. The result is that judges will likely defer to the
government lawyers who are petitioning in secret for this authority. Further,
no third party is allowed to present and challenge the suitability, legality or
constitutionality of the secret procedures, thus judges will not be given a full
exposition of the potential pitfalls of the approach taken by the government.

The problems raised by this lack of statutory legal standards are
predictable: the privacy of innocent U.S. persons’ communications will be
violated. Although warrant targets are required to be people the government
reasonably believes to be overseas, it is a certainty that the communications
of U.S. persons will be inadvertently swept up in the broad surveillance
regime. Thus, the legality and constitutionality of the minimization
procedures, i.e., the procedures governing what the NSA must do when it
encounters a U.S. person as one party to a communication – must be
carefully scrutinized by the FISC. But, the RESTORE Act does not give the
FISC a meaningful role in reviewing the procedures the government will use
when it encounters a U.S. persons’ communications. Without specific
statutory guidance the FISC judges are left to their own devices to review
minimization procedures. The result is that Congress cannot have
confidence that the minimization procedures – even if deemed “reasonable”
by the FISC – will properly protect privacy. Worse still, the minimization
procedures are not, and have never been, made public. No one, save a few
Intelligence Committee members, know how well minimization works or
how it is actually implemented. Something so fundamental as whether the
government can listen to our phone calls or read our emails should not be
left to be decided in secret by a handful of people.

FISA, as amended, is largely silent as to statutory requirements
providing guidance or limitations for those minimization procedures. The
few provisions in FISA discussing minimization do not require that U.S.
persons’ information be destroyed – except in the narrow circumstance of
wiretapping an embassy, which absolutely does not apply to this program.
In the end, the RESTORE Act provides only a limited role for the
FISC. Essentially, the only role for the court is to negotiate secret rules that
do not even require that American information be destroyed, or ultimately
prevent American information from being used or disseminated.

Compounding the problem, the RESTORE Act does not provide explicit
authority for the FISC to modify the orders or the minimization procedures if
it finds a problem during the quarterly review mandated by the RESTORE
Act.

4) The RESTORE Act Fails to Require the Sequestration or
Destruction of Inadvertently Acquired U.S. Persons’
Communications

The RESTORE Act fails to mandate that when the communications
of U.S. persons are inadvertently intercepted that the NSA minimize in a
meaningful way that communication, either by requiring the NSA to
sequester or destroy that conversation. It is a certainty that the expanded
surveillance regime enacted in the Protect America Act and reduced in
scope, but left intact by the RESTORE Act, will lead to substantially more
“inadvertent intercepts” or “inadvertent overhears” by the NSA of U.S.
persons’ communications. Thus, the ACLU believes that Congress must
insist on a more robust regime forcing the NSA to properly protect the
privacy and constitutional rights of U.S. persons’ communications that are
wrongly gathered. The RESTORE Act does not respond meaningfully to
this eventuality. Instead, as with the Protect America Act, the NSA is
allowed to benefit from the windfall effect by keeping and reviewing any
U.S. communicants’ conversations it “accidentally” acquires while
“targeting” people reasonably believed to be overseas who may discuss
foreign intelligence information.

At a certain point, Congress must ask:

Given the huge quantum of U.S. persons’ communications that will
undoubtedly be obtained under this new scheme, is not the real target of the
Protect America Act and bucket warrants in fact the communications of U.S.
persons that the NSA could not have acquired prior to the passage of the
Protect America Act? If so, the RESTORE Act fails to resolve this
mistargeting of U.S. persons’ communications by eliminating the ability of
the NSA to use such windfall intercepts with impunity. Congress should
demand real minimization procedures for U.S. communications.

5) The RESTORE Act Creates a Potential Loophole that
Obviates the Protections Created by the Entire Act

Finally, the very first section of the RESTORE Act, creates a
potentially enormous loophole that could be exploited by an aggressive NSA
to obviate even the modest privacy protections that would be achieved
through passage of the RESTORE Act. The loophole in proposed § 105A(a)
relates to the proposed authority to allow the President to conduct
surveillance for gathering foreign intelligence that relates to the conduct of
foreign affairs, as defined in FISA § 101(e)(2)(B). The RESTORE Act
would potentially authorize interceptions of communications likely to yield
“foreign affairs” information without requiring the government to obtain a
warrant so long as the target is reasonably believed to be a non-US person
outside the United States, regardless of whether that person communicates
with U.S. persons in the United States. Proposed § 105A(b) regulates
electronic surveillance programs for foreign intelligence purposes defined
under FISA §§101(e)(1) and 101(e)(2)(A), but would not regulate
surveillance conducted to acquire foreign affairs communications as defined
in § 101(e)(2)(B). Indeed the applications under proposed § 105B would
require the Attorney General to certify that the basket surveillance requests
to the court were for §§ 101(e)(1) or 101(e)(2), thus, even should the
Attorney General wish to obtain a warrant for 101(e)(2)(B) surveillance he
would have no authority to do so.

Consequently, if proposed § 105A of the RESTORE Act were
enacted this means as long as the President says he is conducting
surveillance for purposes under 101(e)(2)(B) none of the bills other
protections kick in, and he can intercept all the communications of US
persons with no oversight from Congress or the FISC.

Summary and Conclusion: The RESTORE Act Perpetuates Several
Constitutional and Legal Infirmities First Created by the Protect
America Act

The RESTORE Act falls below standards meriting its support.
The Fourth Amendment has several requirements before a search or
seizure is constitutional -- that a judge is involved, that there is probable
cause, that the search or seizure is reasonable, and most important for this
discussion – the things searched or seized have to be stated with
particularity. The particularity requirement was written into the Fourth
Amendment due to past abuses by King George III, whereby the government
would issue blank warrants that allowed government officials wide
discretion to rifle through personal belongings or search people, without
particularized suspicion, to look for anything illegal. No description was
actually given of the illegal behavior that was being investigated, because
the government was on a fishing expedition. This abuse of power was no
less than one of the injustices that led to the American Revolution. Statutes
and even individual searches and seizures have since been held
unconstitutional in the past because they violate the particularity
requirement.

The Protect America Act and the RESTORE Act allow the
government to issue these broad program warrants that state neither the
targets of the search, nor the facilities that will be accessed. They do not
describe what is going to be seized, and eventually used, by the government.
They are virtually a blank check that require only that the surveillance be
directed at people abroad, which may very well be unconstitutional. The
RESTORE Act does not require individualized court orders for anything
collected under the new surveillance program. The program can collect any
communication as long as one leg of it is overseas, leaving open the distinct
possibility – and probability – that the other leg is here in the U.S. and is an
American. If Americans are swept in the new mass collection in this new
general, program warrant, there is no requirement that a court actually
review whether those communications are seized in compliance with the
Fourth Amendment. The RESTORE Act, as currently written, allows the
Attorney General to negotiate secret guidelines with the secret FISA court
about how to use US information, and whether to go back to the court for an
individualized warrant to access US communications. There is no
requirement in the RESTORE Act that individualized warrants be issued
before the government collects communications to which an American is a
party. If a US phone call or email is picked up in these general warrants --
not based on any suspicion of wrongdoing, or even based on a link to
terrorism -- they can be saved and used by the government without any court
review.

Attempts to find a procedure that gives the government flexibility
while respecting the constitutional requirement of particularity have been
rejected. It is perfectly reasonable to allow program warrants to collect calls
and emails among foreigners but Americans deserve, and the constitution
requires, that their communications be treated differently when swept up in
the new dragnet. The government should be forced to go back to court to get
a particularized warrant that meets Fourth Amendment standards before it
can access American communications that have been swept up in these new
blanket or general warrants. Just because the program is directed at people
overseas, it doesn't mean that the Fourth Amendment rights of Americans
who have contact with them have been respected. There has not been a
surveillance program since FISA was created that allows massive,
untargeted collection of communications that will knowingly pick up US
communications on US soil without any suspicion of wrongdoing. This
creates novel and fundamental Fourth Amendment problems that Congress
should seek to avoid instead of sanctioning.

For these reasons, the ACLU opposes the RESTORE Act, H.R. 3773.
Sincerely,
Caroline Fredrickson
Director, Washington Legislative Office
Timothy Sparapani
Senior Legislative Counsel
For further information, please contact Senior Legislative Counsel
Timothy Sparapani at (202) 715-0839 or tsparapani@dcaclu.org, or
Lobbying Consultant Michelle Richardson at (202) 715-0825 or
mrichardson@dcaclu.org.