***TABLE OF CONTENTS***

I.  **Terrorist Surveillance Program**

II. **FISA as the Exclusive Means to Conduct Electronic Surveillance**

III. **Foreign Targeting**

IV. **Liability Protection**

V.  **The House RESTORE Act**

VI. **Senate Judiciary Committee Substitute**

VII. **SSCI Bill, S. 2248**

VIII. **Calls Involving U.S. Citizens**

IX. **Foreign Intelligence Surveillance Court**

X.  **The Protect America Act**

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I.  ***Terrorist Surveillance Program***

Myths Facts

+-----------------------------------+-----------------------------------+
| 1)  The main justification for    | Article II of the United States   |
|     the Terrorist Surveillance    | Constitution gives the President  |
|     Program (TSP) was the         | the authority to conduct          |
|     Authorization for the Use of  | warrantless surveillances to      |
|     Military Force (AUMF).        | collect foreign intelligence      |
|     (Dodd, p. 12)                 | information. There is nothing new |
|                                   | or aggressive about relying on    |
| 2)  The Administration now argues | Article II authority in the       |
|     that the TSP was grounded in  | context of foreign intelligence   |
|     the "extremely nebulous       | surveillance. Courts, including   |
|     authority of the President to | the FISA Court of Review in the   |
|     defend the country" that they | *In Re Sealed Case* decision      |
|     find in the Constitution.     | (2002), and the 4^th^ Circuit in  |
|     (Dodd, p. 12)                 | the *Truong* case, among others,  |
|                                   | have long recognized distinctions |
| 3)  We need full hearings on the  | between domestic and foreign      |
|     TSP before the Intelligence   | surveillance---and the            |
|     and Judiciary Committees.     | President's authority to conduct  |
|     (Dodd, p. 14; Boxer, p. 53;   | foreign intelligence              |
|     Feingold, p. 115)             | surveillance. The Clinton         |
|                                   | Administration recognized this    |
| 4)  It is clear that the          | authority when it conducted a     |
|     Administration made a big     | warrantless search of Aldrich     |
|     mistake in not using FISA in  | Ames' residence in 1993. It is    |
|     the first place. A FISC judge | this Article II authority that    |
|     proved earlier this year that | always has been the foundation    |
|     the TSP could be done under   | and main justification for the    |
|     FISA. (Feinstein, p. 62, 65)  | President's Terrorist             |
|                                   | Surveillance Program (TSP),       |
| 5)  The White House and the       | initiated in the wake of the      |
|     Department of Justice (DoJ)   | September 11^th^ terrorist        |
|     relied on a new and           | attacks.                          |
|     aggressive interpretation of  |                                   |
|     the President's Article II    | As reflected in its report        |
|     authority, a new and expanded | accompanying S. 2248, the Senate  |
|     view of Presidential          | Select Committee on Intelligence  |
|     authority. (Feinstein, p. 62) | (SSCI) has done a thorough,       |
|                                   | comprehensive, and non-partisan   |
| 6)  New reports suggest that the  | review of the TSP, holding        |
|     Administration began its      | numerous hearings and briefings   |
|     warrantless spying even       | on the TSP and telecom carrier    |
|     before 9/11. In clear         | liability. Given the sensitivity  |
|     violation of FISA and the     | of the TSP, the SSCI is the only  |
|     Fourth Amendment, it never    | Committee with jurisdiction that  |
|     told the FISC what it was     | is capable of conducting full     |
|     doing. We still don't know    | hearings. The National Security   |
|     how deeply the TSP invaded    | Agency (NSA) Inspector General,   |
|     the privacy of millions of    | who has the necessary expertise,  |
|     innocent Americans.           | has also conducted oversight of   |
|     (Kennedy, p. 69)              | the TSP since 2002. For these     |
|                                   | reasons, an historical Inspector  |
| 7)  Numerous reports indicate     | General audit of the TSP is       |
|     that the TSP covered not only | unnecessary.                      |
|     international calls, but      |                                   |
|     domestic calls with friends,  | Exactly what the Foreign          |
|     neighbors, and loved ones.    | Intelligence Surveillance Court   |
|     (Kennedy, p. 70)              | (FISC) knew about the TSP cannot  |
|                                   | be stated publicly, but any       |
| 8)  The DoJ legal opinions on the | Senator can come to the SSCI for  |
|     TSP were "flimsy." The        | a briefing on that issue. There   |
|     opinions are being classified | is no evidence to substantiate    |
|     to protect the President's    | claims about warrantless spying   |
|     political security, not our   | on Americans prior to the 9/11    |
|     national security. (Wyden, p. | terrorist attacks. Nor is there   |
|     82)                           | any evidence to substantiate the  |
|                                   | claim that the TSP covered        |
| 9)  An audit of the President's   | domestic calls between friends,   |
|     illegal wiretapping program   | neighbors, and loved ones. As the |
|     by relevant inspectors        | President has stated, the TSP     |
|     general is long overdue.      | involved the collection of        |
|     (Feingold, p. 112)            | international calls involving     |
|                                   | members of al Qaeda.              |
|                                   |                                   |
|                                   | Some argue that the TSP should    |
|                                   | have been conducted under the     |
|                                   | Foreign Intelligence Surveillance |
|                                   | Act (FISA). A decision by a FISC  |
|                                   | judge this past spring, however,  |
|                                   | proved that the TSP could         |
|                                   | ***not*** be done under FISA as   |
|                                   | it existed at that time. This     |
|                                   | decision resulted in significant  |
|                                   | intelligence gaps and led to the  |
|                                   | need for, and passage of, the     |
|                                   | Protect America Act (PAA).        |
|                                   |                                   |
|                                   | Some Senators have made negative  |
|                                   | comments about the legal          |
|                                   | reasoning by DoJ in support of    |
|                                   | the TSP. In turn, such comments   |
|                                   | have been used to argue against   |
|                                   | any liability protection for the  |
|                                   | carriers who allegedly assisted   |
|                                   | the Government. Although one or   |
|                                   | two Members of Congress who have  |
|                                   | reviewed the opinions question    |
|                                   | DoJ's analysis, I have reviewed   |
|                                   | the opinions and found them       |
|                                   | soundly reasoned. Because the TSP |
|                                   | involved highly sensitive sources |
|                                   | and methods, the DoJ legal        |
|                                   | opinions are classified and their |
|                                   | contents cannot be discussed      |
|                                   | publicly.                         |
+-----------------------------------+-----------------------------------+

II. ***FISA as the Exclusive Means to Conduct***

> ***Electronic Surveillance***
>
> ***Myths*** Facts

+-----------------------------------+-----------------------------------+
| 10) Congressional intent from     | The Constitution is the highest   |
|     1978 is clear. Congress       | law in the land and trumps any    |
|     clearly intended for FISA to  | statute. It is false to suggest   |
|     be the exclusive means under  | that the President has no         |
|     which the Executive branch    | inherent constitutional authority |
|     could conduct electronic      | to conduct warrantless            |
|     surveillance. (Feinstein, p.  | surveillance for foreign          |
|     64)                           | intelligence purposes because     |
|                                   | Congress tried to limit it in     |
| 11) "But the Bush Administration  | FISA. Congress in 1978 recognized |
|     apparently decided that FISA  | the tension between the Act it    |
|     was an inconvenience."        | was creating and the President's  |
|     (Kennedy, p. 70)              | inherent authority under Article  |
|                                   | II.                               |
| 12) Arguing that the President    |                                   |
|     has inherent constitutional   | Because Congress cannot by        |
|     authority to wiretap without  | legislation exterminate a         |
|     a court order is "an          | President's constitutional power, |
|     invitation to lawlessness."   | if Congress wanted to go further, |
|     (Feingold, p. 115)            | the Constitution would have to be |
|                                   | changed.                          |
| 13) Congress has spoken very      |                                   |
|     clearly in FISA and limited   | Warrantless surveillance for      |
|     the President's power to      | foreign intelligence collection   |
|     conduct surveillance. The     | has been an integral part of our  |
|     President must follow the law | nation's foreign intelligence     |
|     that Congress passes.         | gathering. During World War II,   |
|     (Feingold, p. 115-116)        | our warrantless surveillance of   |
|                                   | the German and Japanese           |
| 14) Warrantless spying threatens  | militaries and the breaking of    |
|     to undermine our democratic   | their codes preserved our         |
|     society unless legislation    | democracy.                        |
|     brings it under control.      |                                   |
|     (Dodd, p. 16)                 |                                   |
+-----------------------------------+-----------------------------------+

III. ***Foreign Targeting***

Myths Facts

+-----------------------------------+-----------------------------------+
| 15) The SSCI bill permits the     | The SSCI bill only allows         |
|     Government to acquire         | targeting of persons outside the  |
|     foreigners' communications    | U.S. to obtain ***foreign         |
|     with Americans inside the     | intelligence information***. This |
|     United States, regardless of  | is not a new form of              |
|     whether anyone involved in    | surveillance; the NSA has been    |
|     the communication is under    | doing this since its inception.   |
|     any suspicion of wrongdoing.  | Nor is it dragnet surveillance.   |
|     There is no requirement that  | The targets of acquisition must   |
|     the foreign targets of this   | be foreign targets (e.g.,         |
|     surveillance be terrorists,   | suspected terrorists or spies)    |
|     spies, or other types of      | and the Attorney General and the  |
|     criminals. (Feingold, p. 33)  | Director of National Intelligence |
|                                   | (DNI) must certify that a         |
| 16) Many law-abiding Americans    | significant purpose of the        |
|     who communicate with          | acquisition is to obtain foreign  |
|     completely innocent people    | intelligence information. For     |
|     overseas will be swept up in  | example, if a foreign target is   |
|     this new form of              | believed to be an agent or member |
|     surveillance. (Feingold, p.   | of al Qaeda, then all the         |
|     33; Kennedy, p. 67)           | communications of that target     |
|                                   | could be intercepted.             |
| 17) We are talking about a huge   |                                   |
|     dragnet that will sweep up    | Since the acquisition is targeted |
|     innocent Americans.           | against suspected terrorists and  |
|     (Feingold, p. 33)             | the vast majority of intercepts   |
|                                   | are overseas, only Americans who  |
| 18) "Parents of children call     | communicate [with those suspected |
|     family members overseas.      | terrorists]{.underline} will have |
|     Students e-mail friends they  | [those specific                   |
|     have met while studying       | communications]{.underline}       |
|     abroad . . . We are going to  | monitored. If those same          |
|     give the Government broad new | communications turn out to be     |
|     powers that will lead to the  | innocent, they will be            |
|     collection of much more       | "minimized," or suppressed, so    |
|     information on innocent       | that Americans' privacy interests |
|     Americans." (Feingold, p. 33) | are protected. It is misleading   |
|                                   | to suggest that the Intelligence  |
| 19) The SSCI bill has an enormous | Community is spying on parents    |
|     problem: the complete lack of | who are calling their children    |
|     incentives for the Government | overseas, on students who are     |
|     to target people overseas     | talking with their friends, or on |
|     rather than people in the     | our soldiers on the battlefield.  |
|     United States. (Feingold, p.  | Our intelligence professionals    |
|     112)                          | are busy tracking real            |
|                                   | terrorists, members of al Qaeda,  |
|                                   | not listening to family           |
|                                   | discussions or conversations      |
|                                   | between classmates.               |
|                                   |                                   |
|                                   | As a practical matter, if the     |
|                                   | Intelligence Community becomes    |
|                                   | interested in the communications  |
|                                   | of a person in the United States, |
|                                   | they seek a Title III criminal    |
|                                   | warrant or a FISA order to        |
|                                   | intercept ***all*** of the        |
|                                   | communications of that person,    |
|                                   | not just the communications with  |
|                                   | the target overseas.              |
+-----------------------------------+-----------------------------------+

IV. ***Liability Protection***

***Myths Facts***

+-----------------------------------+-----------------------------------+
| 20) The President is wrong to     | In his original FISA              |
|     claim that failing to give    | modernization request, made in    |
|     retroactive immunity will     | April 2007, the DNI asked for     |
|     make the telecoms less likely | full liability protection for all |
|     to cooperate in the future.   | those allegedly involved in the   |
|     (Dodd, p. 19)                 | TSP. The SSCI weighed the         |
|                                   | arguments in favor of and against |
| 21) We are talking about          | liability protection. In its      |
|     protecting companies that     | considered judgment, the SSCI     |
|     complied with surveillance    | determined that civil liability   |
|     requests they knew were       | protection for the providers was  |
|     illegal; it is premature to   | not only fair, but it was the     |
|     be talking about this         | only way to safeguard our         |
|     subject. (Kennedy, p. 70)     | intelligence sources and methods  |
|                                   | and to ensure that the providers  |
| 22) The President is demanding    | would be willing to cooperate     |
|     immunity without telling all  | with legitimate requests in the   |
|     Members of Congress which     | future. The SSCI has determined   |
|     companies broke the law, how  | that the companies that allegedly |
|     they broke the law, or why    | assisted the Government with the  |
|     they broke the law. He is     | TSP acted in good faith and       |
|     asking Congress to legislate  | relied upon representations from  |
|     in the dark. (Kennedy, p. 71) | the highest levels of Government  |
|                                   | that the program was lawful.      |
| 23) The Administration has used   | Further, because the Government   |
|     the scare tactic of claiming  | has asserted the state secrets    |
|     that lawsuits will jeopardize | privilege, the companies cannot   |
|     national security by leaking  | prove that they are entitled to   |
|     sensitive information. The    | statutory immunity. The use of    |
|     media has already exposed the | the term "amnesty" is incorrect   |
|     TSP and it would be foolish   | in this context because it        |
|     to assume that terrorists     | assumes that the alleged carriers |
|     don't already know we are     | did something illegal. These      |
|     trying to intercept their     | carriers deserve ***liability     |
|     communications. (Kennedy, p.  | protection***, not amnesty.       |
|     71; Dodd, p. 15)              |                                   |
|                                   | The documents that are most       |
| 24) It is sheer nonsense to       | relevant to whether the providers |
|     suggest that allowing the     | acted in good faith are the       |
|     lawsuits to proceed might     | letters from the Government to    |
|     jeopardize national security  | the providers. The SSCI read      |
|     by deterring future           | these letters several months      |
|     cooperation. The companies    | before the Committee's vote on    |
|     already have full immunity    | its bill. The providers never saw |
|     under FISA. (Kennedy, p. 71;  | the DoJ legal opinions or         |
|     Feingold, p. 113; Dodd, p.    | Presidential authorizations that  |
|     15)                           | were made available to the SSCI   |
|                                   | shortly before the vote.          |
| 25) Voting for amnesty will be a  |                                   |
|     vote for silence, secrecy,    | Although the media exposed the    |
|     and illegality. (Kennedy, p.  | TSP, it is important to remember  |
|     72)                           | that anyone who served as a       |
|                                   | source for that article violated  |
| 26) After the SSCI dealt with the | the law and their oath to protect |
|     Administration's original     | and defend the Constitution of    |
|     concern that FISA needed to   | the United States. While it is    |
|     be modernized, the            | true that the existence of the    |
|     Administration asked for      | TSP has been revealed, details    |
|     something else---this total   | about the program have not. Each  |
|     grant of immunity. (Wyden, p. | day that these lawsuits           |
|     83)                           | continue---with the prospect of   |
|                                   | civil discovery---brings new      |
| 27) Substitution will give the    | risks that sensitive details      |
|     carriers the protection of    | about our intelligence sources    |
|     the courts and the Government | and methods will be revealed. As  |
|     can control the case for      | General Hayden stated, the        |
|     national security purposes.   | disclosure of the TSP has had a   |
|     (Cardin, p. 110)              | significant impact on             |
|                                   | intelligence collection. We       |
| 28) Arguments in favor of         | should not give terrorists any    |
|     immunity are false and        | additional insight through        |
|     misleading: e.g., supporters  | continued TSP litigation.         |
|     claim that only foreign       |                                   |
|     communications, not domestic, | Substitution does not give the    |
|     were targeted; lack of        | carriers adequate protection.     |
|     immunity will make telecoms   | Civil discovery would still be    |
|     less likely to cooperate;     | allowed to proceed against them,  |
|     telecoms cannot defend        | thereby exposing them to further  |
|     themselves without exposing   | harm and further risking          |
|     state secrets; telecoms are   | disclosure of our sources and     |
|     already protected by common   | methods. As evidenced by the      |
|     law principles; leaks from    | ongoing litigation, and the       |
|     trial could damage national   | court's refusal to accept the     |
|     security; and telecoms will   | state secrets assertion, the      |
|     suffer damage to reputation   | Government cannot always control  |
|     and business. (Dodd, p.       | the case for national security    |
|     123-125)                      | purposes.                         |
|                                   |                                   |
| 29) Retroactive immunity could    | Some Senators have claimed that   |
|     prevent the courts from       | the arguments in favor of         |
|     ruling on the TSP, one of the | immunity are false and            |
|     worst abuses of executive     | misleading. Such statements       |
|     power in our Nation's         | reflect a startling lack of       |
|     history. (Feingold, p. 115)   | knowledge about the electronic    |
|                                   | surveillance conducted by our     |
| 30) If we grant immunity, we will | Intelligence Community and the    |
|     make the same mistakes we     | vital role played by providers.   |
|     made with the USA PATRIOT     | These points were resolved in     |
|     Act. The PATRIOT Act was      | favor of immunity by the SSCI in  |
|     passed without sufficient     | its bipartisan 13-2 bill. Our     |
|     time to consider its          | intelligence and law enforcement  |
|     implications and not enough   | agencies rely on the willingness  |
|     was done to fix it during the | of providers to cooperate,        |
|     reauthorization period. As a  | including in emergencies (as with |
|     result, three courts have     | the kidnapping of a child). Court |
|     struck down provisions as     | orders are not always required    |
|     being unconstitutional.       | for collection (e.g., 50 U.S.C. § |
|     (Feingold, p. 36)             | 1802(a), consent searches, etc.). |
|                                   | Yet, some carriers already have   |
| 31) DNI Mike McConnell is         | told us that if they are not      |
|     becoming "an accidental       | given liability protection, they  |
|     truth-teller" when it comes   | will be unwilling to help without |
|     to carrier liability          | court orders or compulsion.       |
|     protection. (Dodd, p. 20)     |                                   |
|                                   | The SSCI civil liability          |
|                                   | provision applies only to         |
|                                   | providers. It does ***not***      |
|                                   | apply to any Government           |
|                                   | officials. There currently are    |
|                                   | seven cases related to the TSP    |
|                                   | that are pending against          |
|                                   | Government officials. These cases |
|                                   | will continue.                    |
|                                   |                                   |
|                                   | DNI McConnell has served his      |
|                                   | country honorably in many         |
|                                   | positions. Throughout this        |
|                                   | debate, he and other intelligence |
|                                   | professionals who will have to    |
|                                   | implement the law that we pass    |
|                                   | gave unbiased advice and          |
|                                   | technical assistance. They        |
|                                   | assisted Democrats and            |
|                                   | Republicans in order to ensure    |
|                                   | that the Intelligence Community   |
|                                   | has the tools it need to protect  |
|                                   | us, including the continued       |
|                                   | cooperation of our private        |
|                                   | partners. Attacking his integrity |
|                                   | to score political points is      |
|                                   | unseemly and unjustified.         |
|                                   |                                   |
|                                   | Provisions in the PATRIOT Act     |
|                                   | broke down the walls between      |
|                                   | criminal and intelligence         |
|                                   | information sharing. All but two  |
|                                   | provisions were reauthorized      |
|                                   | permanently after an extensive    |
|                                   | review by Congress. The three     |
|                                   | cases in which certain provisions |
|                                   | have been declared                |
|                                   | unconstitutional are still        |
|                                   | pending appellate review.         |
+-----------------------------------+-----------------------------------+

V.  ***The House RESTORE Act***

Myths Facts

+-----------------------------------+-----------------------------------+
| 32) The House RESTORE Act takes a | The RESTORE Act's unreasonable    |
|     balanced approach to civil    | restrictions on collection and    |
|     liberties and national        | use of information would shut     |
|     security and gives the        | down our intelligence agencies.   |
|     Intelligence Community "great | It requires prior court approval  |
|     flexibility" to conduct       | to target foreign terrorists      |
|     surveillance on overseas      | overseas, but seeks to maintain   |
|     targets. (Leahy, p. 138)      | the unworkable distinction of     |
|                                   | foreign to foreign                |
|                                   | communications---we cannot know   |
|                                   | whom a terrorist target is        |
|                                   | calling when intercepts are       |
|                                   | initiated. It limits the type of  |
|                                   | foreign intelligence information  |
|                                   | that may be collected or          |
|                                   | disseminated, to exclude any      |
|                                   | information about the foreign     |
|                                   | affairs of the United States. It  |
|                                   | mandates a two-year sunset and    |
|                                   | requires the FISC to assess       |
|                                   | compliance with targeting         |
|                                   | procedures and guidelines. It     |
|                                   | does not provide any form of      |
|                                   | retroactive liability protection  |
|                                   | for those providers who allegedly |
|                                   | assisted with the TSP. As a       |
|                                   | result, the DNI has stated that   |
|                                   | he cannot support the RESTORE     |
|                                   | Act.                              |
+-----------------------------------+-----------------------------------+

VI. ***Senate Judiciary Committee Substitute***

***Myths Facts***

+-----------------------------------+-----------------------------------+
| 33) The Judiciary Committee made  | While the Judiciary Committee may |
|     critical improvements to      | have "wanted to" make sure that   |
|     ensure independent judicial   | the Intelligence Community has    |
|     oversight of sweeping new     | the tools it needs, the SSCI      |
|     powers and to better protect  | actually did so. The DNI has      |
|     innocent Americans.           | advised that if the Judiciary     |
|     (Feingold, p. 32)             | Committee Substitute is part of   |
|                                   | the bill sent to the President,   |
| 34) The Judiciary Committee       | he will recommend a veto, as the  |
|     wanted to make sure that the  | "improvements" that the Judiciary |
|     bill gives the Intelligence   | Committee made to this bill will  |
|     Community the tools it needs, | ensure that the Intelligence      |
|     particularly with respect to  | Community does ***not*** have the |
|     foreign to foreign            | tools it needs to track           |
|     communications. (Cardin, p.   | effectively terrorists and spies. |
|     109)                          |                                   |
|                                   | The differences between the two   |
| 35) The differences between the   | bills have everything to do with  |
|     SSCI and Judiciary bills have | the ability to combat terrorism.  |
|     nothing to do with "our       | The SSCI bill was coordinated     |
|     ability to combat terrorism." | with Intelligence Community       |
|     (Feingold, p. 111)            | experts and operators to ensure   |
|                                   | that there were no unintended     |
| 36) The Judiciary Committee       | consequences. The DNI has stated  |
|     process was better than the   | that he will support the SSCI     |
|     SSCI's as it was open and     | bill, with amendments to two      |
|     allowed outside experts and   | provisions, because it gives him  |
|     the public at large to review | the tools needed to combat        |
|     and comment. (Feingold, p.    | terrorism. In contrast, the       |
|     34, 111; Leahy, p. 137)       | opinions of Intelligence          |
|                                   | Community experts were not        |
|                                   | factored into most of the         |
|                                   | controversial provisions in the   |
|                                   | Judiciary bill. As a result, the  |
|                                   | Judiciary Committee Substitute    |
|                                   | would gut our intelligence        |
|                                   | collection capabilities.          |
|                                   |                                   |
|                                   | For example, the Judiciary        |
|                                   | Committee bill would replace the  |
|                                   | judgment of trained intelligence  |
|                                   | analysts with that of FISC        |
|                                   | judges. The FISC itself           |
|                                   | recognized in a published opinion |
|                                   | on December 11, 2007, that only   |
|                                   | the Executive branch has the      |
|                                   | necessary expertise in the        |
|                                   | national security arena. In       |
|                                   | addition, the exclusivity         |
|                                   | provision in the Judiciary bill   |
|                                   | would prohibit the use of grand   |
|                                   | jury subpoenas and other law      |
|                                   | enforcement or intelligence tools |
|                                   | to obtain foreign intelligence    |
|                                   | information. Finally, by          |
|                                   | inserting an unnecessary          |
|                                   | prohibition against bulk          |
|                                   | collection, the Judiciary         |
|                                   | Committee bill creates            |
|                                   | operational and legal impediments |
|                                   | that could shut collection down.  |
|                                   |                                   |
|                                   | As we learned from the PAA        |
|                                   | process and the House RESTORE     |
|                                   | Act, the focus on "foreign to     |
|                                   | foreign communications" is        |
|                                   | misplaced. It is not always       |
|                                   | possible to tell if a             |
|                                   | communication is going to travel  |
|                                   | from a foreign target to another  |
|                                   | foreigner. Thus, the collection   |
|                                   | could not begin or court orders   |
|                                   | would be required beforehand in   |
|                                   | all instances.                    |
+-----------------------------------+-----------------------------------+

VII. ***SSCI Bill, S. 2248***

***Myths Facts***

+-----------------------------------+-----------------------------------+
| 37) The SSCI bill's safeguards    | The SSCI bill was crafted         |
|     against abuse, against the    | carefully with Intelligence       |
|     needless targeting of         | Community experts to ensure that  |
|     ordinary Americans, are far   | there were no unintended          |
|     too weak. The bill            | operational consequences.         |
|     concentrates far too much     | Independent outside experts on    |
|     power in the hands of the     | FISA and national security were   |
|     Administration. (Dodd, p. 60) | also consulted. This bill goes    |
|                                   | farther than ever before in       |
| 38) Problems with the SSCI bill:  | providing a meaningful role for   |
|     redefinition of electronic    | the courts and Congress in        |
|     surveillance is unnecessary;  | overseeing these acquisitions.    |
|     there are no consequences if  | There are express prohibitions    |
|     the FISC rejects the          | against "reverse targeting" and   |
|     targeting/minimization        | the targeting of a person inside  |
|     procedures; it does not       | the United States without a court |
|     contain a "reverse targeting" | order. Americans abroad are given |
|     prohibition; it allows        | new protections. The acquisitions |
|     warrantless interception of   | must also comply with the Fourth  |
|     purely domestic               | Amendment.                        |
|     communications; and it does   |                                   |
|     not require an independent    | The clarification of the          |
|     review of the TSP.            | definition of electronic          |
|     (Kennedy, p. 68; Feingold, p. | surveillance is necessary to      |
|     112-113)                      | ensure that the activities        |
|                                   | authorized are not erroneously    |
| 39) Five flaws with the SSCI      | considered electronic             |
|     bill: safeguards against      | surveillance under Title I of     |
|     targeting Americans (its      | FISA. The FISC will review the    |
|     minimization procedures) are  | targeting and minimization        |
|     insufficient; fails to        | procedures to ensure that they    |
|     protect Americans from        | comply with the law. If the FISC  |
|     "reverse targeting;" might    | finds deficiencies in the         |
|     actually allow warrantless    | procedures, it can order the      |
|     wiretapping of Americans to   | Government to correct the         |
|     continue because it lacks     | deficiency or cease the           |
|     strong exclusivity language;  | acquisition.                      |
|     lacks strong protections      |                                   |
|     against bulk collection; and  | The SSCI bill reiterates the 1978 |
|     has a 6-year sunset.          | FISA exclusivity provision. There |
|     (Dodd, p. 87-88)              | is nothing in this bill that will |
|                                   | allow the warrantless wiretapping |
|                                   | of Americans in violation of      |
|                                   | Title III (criminal wiretaps) or  |
|                                   | FISA. The targeting allowed by    |
|                                   | this bill is not dragnet          |
|                                   | surveillance---it is targeted at  |
|                                   | foreigners outside the United     |
|                                   | States. A 6-year, or longer,      |
|                                   | sunset is necessary to give the   |
|                                   | Intelligence Community enough     |
|                                   | certainty in the tools and        |
|                                   | authorities it has to track       |
|                                   | terrorists and spies.             |
+-----------------------------------+-----------------------------------+

VIII. ***Calls Involving U.S. Citizens***

Myths Facts

+-----------------------------------+-----------------------------------+
| 40) It is essential to our        | It is operationally impossible to |
|     freedom to require a FISC     | require a court order any time a  |
|     order to continue             | call involves a U.S. citizen. For |
|     surveillance when a call      | thirty years, the Intelligence    |
|     involves U.S. citizens.       | Community has used minimization   |
|     (Boxer, p. 53)                | procedures when inadvertently     |
|                                   | intercepting calls to or from     |
|                                   | non-target U.S. persons.          |
|                                   | "Minimization" means that         |
|                                   | intercepts that have no terrorism |
|                                   | value will be suppressed; that    |
|                                   | is, they will not be used or      |
|                                   | shared even with other Government |
|                                   | agencies. These minimization      |
|                                   | procedures have worked well, and  |
|                                   | under this bill, they are subject |
|                                   | to FISC approval. Because it      |
|                                   | cannot be known in advance        |
|                                   | whether a foreign target is going |
|                                   | to call, or be called by, a U.S.  |
|                                   | person, either the surveillance   |
|                                   | cannot be done or court orders    |
|                                   | would have to be obtained on      |
|                                   | ***all*** foreign targets ahead   |
|                                   | of time just in case they         |
|                                   | communicate with a U.S. person.   |
|                                   | This requirement would shut down  |
|                                   | our intelligence capabilities.    |
|                                   |                                   |
|                                   | Moreover, it is unsound policy to |
|                                   | require a FISC order. If a        |
|                                   | terrorist target abroad calls a   |
|                                   | United States person, that may be |
|                                   | the most important call to        |
|                                   | intercept to protect us from      |
|                                   | terrorist attacks. Would the      |
|                                   | Senator really mean that the call |
|                                   | could not be intercepted until a  |
|                                   | massive court filing is prepared  |
|                                   | and reviewed by Government        |
|                                   | lawyers and operators, and        |
|                                   | submitted to the FISC who must    |
|                                   | first review the application and  |
|                                   | supporting documents and then     |
|                                   | issue an order?                   |
+-----------------------------------+-----------------------------------+

IX. ***Foreign Intelligence Surveillance Court***

***Myths Facts***

+-----------------------------------+-----------------------------------+
| 41) The FISA framework in place   | The FISC was set up to issue      |
|     is enough to keep us safe.    | orders for electronic             |
|     (Dodd, p. 17)                 | surveillance conducted on         |
|                                   | individual targets inside the     |
| 42) Regarding the suggestion to   | United States. It was not set up  |
|     have the FISC review the good | to make determinations on the     |
|     faith of the carriers before  | good faith of providers in        |
|     immunity is granted: the FISC | cooperating with a                |
|     sits "24/7, and this is all   | Presidentially-authorized         |
|     they do, they would act en    | warrantless surveillance program. |
|     banc." (Feinstein, p. 66)     | It was not set up to second-guess |
|                                   | the decisions of trained analysts |
| 43) The FISC was set up for the   | as to which terrorists to track   |
|     purpose of determining        | by assessing compliance with      |
|     whether the carriers acted in | minimization procedures. As       |
|     good faith and it has the     | reflected in the FISC's opinion   |
|     expertise in this area.       | of December 11, 2007, the FISC    |
|     (Cardin, p. 110)              | judges are not experts in foreign |
|                                   | intelligence activities and they  |
| 44) The FISC doesn't issue        | do not make judgments on the need |
|     written opinions. (Cardin, p. | for particular surveillances.     |
|     110)                          | Congress is in the best position  |
|                                   | to review whether the carriers    |
| 45) Allowing the FISC to assess   | acted in good faith. After a      |
|     compliance is necessary;      | thorough review of this issue,    |
|     otherwise, the Government's   | the SSCI voted overwhelmingly in  |
|     dissemination and use of      | favor of carrier liability        |
|     information on innocent,      | protection.                       |
|     law-abiding Americans will be |                                   |
|     unchecked. (Feingold, p. 112) | The FISC does not sit 24/7;       |
|                                   | rather, it is composed of U.S.    |
| 46) Re: the number of orders      | District Court Judges from        |
|     granted by the FISC in the    | throughout the country who have   |
|     past 25 years---out of 18,000 | full caseloads in their own       |
|     requests, only 5 have been    | districts and who come to         |
|     rejected. (Dodd, p. 133)      | Washington, D.C., on a rotating   |
|                                   | basis to issue FISA orders. It    |
| 47) Congress needs to obtain FISA | would, in fact, be difficult to   |
|     pleadings because it "may be  | get them together to sit en banc. |
|     critical to understanding the | The FISC regularly issues         |
|     reasoning behind any          | classified written orders or      |
|     particular interpretation as  | opinions, and it (or the FISA     |
|     well as how the Government    | Court of Review) has published    |
|     interprets and seeks to       | three of those opinions in its    |
|     implement the law."           | history, including the FISC's     |
|     (Feingold, p. 112)            | opinion on December 11, 2007.     |
|                                   |                                   |
|                                   | With the passage of the PAA,      |
|                                   | significant intelligence gaps     |
|                                   | have been closed. Prior to the    |
|                                   | PAA, the FISA framework was not   |
|                                   | sufficient and led to the         |
|                                   | creation of those gaps. It is     |
|                                   | misleading to imply that the TSP  |
|                                   | could have been "rubber-stamped"  |
|                                   | by the FISC. On the contrary, it  |
|                                   | was an adverse FISC ruling that   |
|                                   | degraded our intelligence         |
|                                   | capabilities and led to the       |
|                                   | passage of the PAA.               |
|                                   |                                   |
|                                   | The SSCI bill has a provision     |
|                                   | that broadens current             |
|                                   | congressional access to certain   |
|                                   | FISC orders, opinions, and        |
|                                   | decisions. There is no need to    |
|                                   | obtain related pleadings as the   |
|                                   | Court's decisions adequately      |
|                                   | reflect any legal reasoning.      |
|                                   | Requiring the pleadings,          |
|                                   | particularly going back 5 years,  |
|                                   | will place an unnecessary         |
|                                   | administrative burden on already  |
|                                   | strained resources.               |
+-----------------------------------+-----------------------------------+

X.  ***The Protect America Act***

***Myths Facts***

+-----------------------------------+-----------------------------------+
| 48) The Protect America Act was   | The only secret negotiations      |
|     negotiated in secret at the   | during the PAA process were those |
|     last minute. (Kennedy, p. 68) | between the Democratic leaders of |
|                                   | the SSCI, the House Permanent     |
| 49) The PAA process was flawed    | Select Committee on Intelligence, |
|     and resulted in flawed        | the Senate Judiciary Committee,   |
|     legislation, with few people  | the House Judiciary Committee,    |
|     knowing what the language     | and the House and Senate. No      |
|     would actually do.            | Republicans were allowed to       |
|     (Kennedy, p. 68)              | participate in these              |
|                                   | negotiations, notwithstanding the |
| 50) The PAA was rushed through    | extensive work on FISA            |
|     the Senate in an atmosphere   | modernization that had been done  |
|     of fear and intimidation      | already on a bipartisan basis by  |
|     after the Administration      | the SSCI.                         |
|     "reneged on agreements        |                                   |
|     reached with congressional    | As a result, the counterproposal  |
|     leaders." (Leahy, p. 137)     | to the PAA was not even available |
|                                   | for review until less than one    |
|                                   | hour before the vote; conversely, |
|                                   | the substantive text of the PAA,  |
|                                   | as ultimately enacted, was        |
|                                   | available one week before the     |
|                                   | vote and was on the Senate        |
|                                   | Calendar two days prior. The PAA  |
|                                   | did what it was intended to do:   |
|                                   | close the intelligence gaps which |
|                                   | threatened the security of our    |
|                                   | country.                          |
|                                   |                                   |
|                                   | The DNI did not renege on any     |
|                                   | "agreements." He consistently     |
|                                   | stated that he had to see text    |
|                                   | before he could make any          |
|                                   | promises.                         |
+-----------------------------------+-----------------------------------+