Schiff, Flake, Offer Bipartisan Measure to Prohibit NSA Surveillance of Americans on American Soil Unless Authorized by Law

WASHINGTON, D.C. – Congressman Adam Schiff (D-CA) and Congressman Jeff Flake (R-AZ), members of the House Judiciary Committee, will offer bipartisan legislation on the House Floor today to address the President's domestic surveillance program.  The Schiff/Flake substitute is an alternative to the Administration-backed bill that would give the President unprecedented powers to surveil Americans without Congressional or court review.  The Schiff/Flake substitute would update provisions of the Foreign Intelligence Surveillance Act (FISA) to provide intelligence agencies more flexibility in emergency situations and lesser bureaucratic red tape when applying for warrants, while still requiring court orders for domestic surveillance of Americans.

“The Federal Government has a duty to pursue al Qaeda and other enemies of the U.S. with all available tools to thwart future attacks and to destroy the enemy,” said Schiff.  “Electronic surveillance of those seeking to harm our country must continue; it must also comply with the Constitution.”

The Schiff-Flake legislation responds to the issues that have been raised by officials at the NSA (National Security Agency) and the Department of Justice over the last several months in testimony to Congress. 
The bipartisan amendment on NSA oversight:

  1. Extends Warrantless Electronic Surveillance Authority to Prevent Attacks - extends from 72 hours to 7 days the amount of time allowed to initiate surveillance in an urgent situation before going to the FISA court for a warrant. This authority can be used to thwart imminent attacks. 
  2. Enhances Electronic Surveillance Authority after an Attack - provides that in addition to a “declaration of war by the Congress,” an “authorization for the use of military force (AUFM)” can also trigger the FISA “wartime exception” for purposes of allowing 15 days of warrantless surveillance.
  3. Clarifies that Foreign-to-Foreign Communications are Outside FISA - makes clear that foreign-to-foreign communications are outside of FISA and don’t require a court order.
  4. Permits Continued Surveillance Where Targets Travel Internationally - provides that a FISA order for electronic surveillance shall continue to be in effect for the authorized period even if the person leaves the U.S.
  5. Streamlines FISA Application Process - removes redundant requirements in the application process and streamlines some of the current detailed requirements in order to permit information to be drafted in summary form.
  6. Increases Speed and Agility of FISA Process – authorizes the FISA court, DOJ, FBI, and NSA to hire more staff for the preparation and consideration of FISA applications and orders. Authorizes the appointment of additional FISA judges to provide for the prompt and timely consideration of FISA applications and requires a 24-hour turnaround for emergency applications. 
  7. Reiterates Exclusivity of FISA and Clarifies Military Force Statute – reiterates that FISA is the exclusive means by which domestic electronic surveillance for foreign intelligence purposes may be conducted, unless Congress amends the law or passes additional laws regarding electronic surveillance. Makes clear that the AUMF does not constitute an exception to that rule.
  8. Requires Congressional Oversight of TSP and Other Programs in Existence - requires a report to Intel on the Terrorist Surveillance Program (TSP) and any program involving electronic surveillance of U.S. persons in the U.S. for foreign intelligence purposes that is outside FISA. Provides access of this report to members of the Judiciary Committee. 
  9. Reps. Schiff and Flake previously teamed up to protect the civil liberties of Americans while ensuring that our national security needs are met.  Last year, the two secured passage of an amendment to the Patriot Act to provide additional safeguards for library and bookstore records.