The National Security Agency's Domestic Spying Program: What Next?

Suzanne Spaulding, LAWS Contributor
September 14, 2007 [click here]

Nearly 30 years ago, following explosive hearings that revealed surprising excesses by the national U.S. security agencies and the FBI, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to strike a balance between the government’s need for foreign intelligence information and the constitutional requirement that Americans not be subject to electronic eavesdropping without a court order. FISA has been amended many times to ensure that our intelligence capabilities keep pace with advances in technology, but for three decades the core requirement that the government must get a warrant to spy on Americans in the United States remained intact. That abruptly changed on Aug. 5, 2007, when the president signed legislation which permits the government to eavesdrop on Americans without a warrant so long as the “target” of the surveillance is located outside the United States.

This and other sweeping changes to FISA were enacted with virtually no public debate as Congress prepared to leave for the August recess. The legislation is set to expire in six months, and several congressional leaders have vowed to reconsider it now that Congress is back in session.

On May 1, 2007, Suzanne Spaulding, a long-time board member of LAWS with over 20 years’ experience in national security, intelligence and terrorism matters, testified before the Senate Select Committee on Intelligence, which was then beginning to consider the Bush administration’s far-reaching proposed amendments to FISA, pointing out that the legal framework that governs this intelligence activity is a patchwork of laws, policies, guidelines and directives scattered throughout the U.S. Code that has developed piecemeal over time and badly needs to be comprehensively reviewed by Congress before enacting any further amendments to FISA or any other domestic intelligence laws. (Click here to go directly to her testimony (PDF).)

The legislation then foundered for several months until it was revived in early August as the administration tasked Mike McConnell, the director of national intelligence, to be the chief negotiator and to press for enactment before Congress adjourned. He did so, but left many legislators unhappy with the eleventh-hour arm-twisting that ensued. Several security law experts said that the new law’s impact want far beyond the small fixes that had originally been proposed, and would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the U.S. Similarly, the new law contains extremely broad blanket immunity for the tele-communication companies that Spaulding said deserves careful examination, since it is not clear why it is needed. As she noted in her May 1 testimony at page 10, “In an area such as this, where the normal safeguards of transparency are lacking, requiring communication providers to at least get a certification that the request to hand over customer information or allow communication intercepts is legal serves as an important potential deterrent to abusive behavior by the government. Congress needs to fully understand what past activities would be immunized before adopting such a wide-ranging provision.”

Spaulding presented additional testimony to the House Judiciary Committee at its hearing on Sept. 5, 2007. To read the Sept. 5 testimony, please click here.

Philip A. Fleming, President, the Lawyers Alliance for World Security  [click here]

International Arbitration and the Making of the World Order

Aníbal Sabater, LAWS Contributor
August 30, 2007 [click here]

As the Iraq Study Group Report pointed out, international arbitration is a tool that nation states should consider in seeking to contain if not resolve extremely contentious and explosive international conflicts. The Baker-Hamilton Study Group Report suggested, in Recommendation 30 at pages 65-66, as follows:

"Kirkuk. Given the very dangerous situation in Kirkuk, international arbitration is necessary to avert communal violence. Kirkuk's mix of Kurdish, Arab, and Turkmen populations could make it a powder keg. A referendum on the future of Kirkuk (as required by the Iraqi Constitution before the end of 2007) would be explosive and should be delayed. This issue should be placed on the agenda of the International Iraq Support Group as part of the New Diplomatic Offensive."

In view of the importance of arbitration as a form of alternate dispute resolution, we asked Anibal Sabater, a member of the Fulbright Jaworski law firm based in Houston, Texas, and an experienced international arbitration practioner, to prepare a primer describing the process, the underlying treaties – several of which are frequently cited as milestones of contemporary public international law – and the role of public and private international organizations in drafting rules and procedures so that parties who wish to engage in international arbitration have several existing structures and providers to select from in selecting the process and the venue. A major advantage of arbitration is flexibility, as the World Trade Organization has demonstrated since its creation in 1995. International arbitration has helped to avoid an escalation of conflicts, and in some situations, has even prevented the outbreak of war.

That is probably why the Baker-Hamilton Commission made its recommendation to pursue arbitration in dealing with the tinder box that is Kirkuk.

Philip A. Fleming, President, the Lawyers Alliance for World Security  [click here]