ABA Backs Listen Act in Testimony Before House Intelligence Committee

WASHINGTON, D.C., July 19, 2006 – American Bar Association President Michael S. Greco today reiterated that “the awesome power to penetrate Americans’ most private communications is too great to be held solely by the executive branch of government,” and called on Congress to oversee domestic surveillance issues with authority and responsibility.

In remarks prepared for the House Permanent Select Committee on Intelligence, at a hearing on the Modernization of the Foreign Intelligence Surveillance Act, Greco began by emphasizing the need for Congress to be fully informed before acting on surveillance issues, and of the critical separation of powers issues raised by Congress not getting information from the administration.

“The American Bar Association urges that, before altering our intelligence laws, Congress insist that the nature and extent of the administration’s warrantless domestic electronic surveillance be explained,” Greco said.

Greco added that the ABA believes that the Foreign Intelligence Surveillance Act should continue to be the exclusive framework under which intelligence surveillance is conducted within the United States for foreign intelligence purposes, and that any legislation attempting to alter FISA must preserve the constitutional balance among the three branches of government.

“For Congress to amend FISA without such provisions would be to give the executive branch a blank check to spy on Americans when and as it sees fit,” said Greco.

Greco went on to detail the association’s support for H.R. 5371, The LISTEN Act, saying “It provides Congress the tools it needs to achieve an improved understanding of the complexities surrounding amendment of the FISA law.”

Greco praised a number of measures in the bill, including reinforcement that FISA and Title III of the criminal code are the exclusive means for authorizing electronic surveillance; its enhanced reporting requirements; and an express statement that the Authorization to Use Military Force after 9/11 did not provide a statutory exception to the FISA requirements.

“It is incumbent on Congress to clarify this point not only for this surveillance program, but for any other programs that may be carried out in the future. If Congress wishes to amend FISA, it should do so explicitly,” noted Greco.

Greco outlined a number of problems raised by a bill recently negotiated between Senate Judiciary Committee Chairman Arlen Specter and the White House, calling it “an enormous and unwarranted departure from the FISA framework and the particularity requirements of the Fourth Amendment.”

Greco also expressed deep concern with the proposed bill’s removal of the exclusivity provisions of FISA, and its transfer to the Foreign Intelligence Court of Review of all cases challenging the legality of classified communications or intelligence activities. Of the transfer proposal, Greco said, “This provision would allow the administration to shop for the most favorable forum and for the FISA Court or the originating court to dismiss such a challenge for any reason. The potential effect of a broad mandatory transfer of such pending cases is that the legal questions at issue unfortunately would be removed from a public forum and addressed in secret proceedings. The ABA believes that this secrecy would seriously compromise the confidence of citizens in the independence of judicial review and in the legality of the government’s actions.”

Greco urged legislators to instead consider the LISTEN Act and the Specter-Feinstein bill earlier proposed in the Senate.

Greco closed by pressing Congress “to assert its proper role, and prevent our constitutional freedoms from falling victim to the terrorists. A failure to do so would give the enemy a victory in undermining democracy that he could never achieve on his own.”

The ABA’s policy on domestic surveillance was crafted by an ABA Task Force on Domestic Surveillance in the Fight Against Terror, a bi-partisan panel that included a former director of the Federal Bureau of Investigation, a former general counsel of the National Security Agency and the Central Intelligence Agency, the National Institute of Military Justice general counsel, and other national security law experts. The unanimous recommendations of the task force were resoundingly approved by the American Bar Association’s 550-member House of Delegates in February 2006.

A full copy of the testimony is available at: http://www.abanet.org/op/greco/memos/aba_testimony_domsurv06.pdf.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.